Complaint and Petition Requesting Criminal Investigation and Prosecution of Hun Sen, Prime Minister of Cambodia

SEPTEMBER 23, 2010

COMPLAINT AND PETITION REQUESTING
CRIMINAL INVESTIGATION AND PROSECUTION
OF HUN SEN, PRIME MINISTER OF CAMBODIA
SUBMITTED TO THE ATTORNEY GENERAL OF THE U.S.,
THE CRIMINAL DIVISION OF THE U.S DEPARTMENT OF JUSTICE, THE U.S. ATTORNEY FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND FEDERAL BUREAU OF INVESTIGATION

CONCERNING FALSE AND FRAUDULENT STATEMENTS, AND MISREPRESENTATIONS AND THREATS MADE TO OFFICERS OF THE FEDERAL BUREAU OF INVESTIGATION DURING THE COURSE OF AN OFFICIAL CRIMINAL INVESTIGATION, IN VIOLATION OF 18 U.S.C. SECTION 1001 and SECTION 115(a)(1) (B) and (b)(4), AND CONSTITUTING OBSTRUCTION OF JUSTICE IN VIOLATION OF 18 U.S.C. SECTION 1501, et seq.

Submitted by Morton Sklar
Founding Executive Director Emeritus (retired)
World Organization for Human Rights USA
with, and on behalf of,
the Sam Rainsy Party of Cambodia
(the largest political opposition group)
and the following named Complainants:
Sam Rainsy, Ly Neary,
Lay Chan Thou, and Nguon Huon Heun
and U.S. citizen Ron Abney

Contact Information: Email: mshumanrights@verizon.net
Telephone: (1) (301) 946-4649

COMPLAINT AND REQUEST FOR CRIMINAL
INVESTIGATION AND PROSECUTION
OF HUN SEN, PRIME MINISTER OF CAMBODIA
AND NAMED SUBORDINATE OFFICIALS

I. Overview: On March 30, 1997, a vicious grenade attack was carried out against a peaceful political rally taking place across from the Parliament building in Phnom Penh, Cambodia. According to a U.S. Federal Bureau of Investigation inquiry on the attack, Prime Minister Hun Sen's Personal Bodyguard military unit may well have been responsible for planning and organizing the attack, and for obstructing the capture of the grenade throwers. A team of FBI investigators was sent by the U.S. Government to compile information and evidence concerning the attack because at least one U.S. citizen was injured by the explosion of the grenades, meaning that U.S. criminal law had been violated. The FBI investigations produced a great deal of information and evidence implicating Hun Sen and his personal military unit as likely perpetrators of these violations of U.S. criminal laws, much of which was presented in testimony and submissions made to the U.S. Congress. But a full FBI investigation was not allowed to be completed because threats were made against the FBI investigators, and false and misleading statements and misrepresentations were made. These actions by Hun Sen and his subordinate officials constituted an attempt to cover-up and prevent prosecution of federal crimes, in violation of provisions of U.S. law that prohibit lying to federal officials engaged during the course of an official investigation (18 U.S.C. Section 1001), obstruction of justice (18 U.S.C. Chapter 73, including Sections 1505 and 1510), and the making of threats against federal officials (18 U.S.C. Sections 115(a)(1) B and (b)(4). This Petition and Complaint seeks a full criminal investigation and prosecution of these attempts to improperly and unlawfully cover-up and prevent the FBI's investigation of the crimes associated with the grenade attack in 1997. It is submitted in conjunction with the visit to the United Nations General Assembly by Prime Minister Hun Sen, in order to make clear his direct involvement in both the original grenade attack itself, and in the efforts by his subordinates to cover up the crimes.

The United States has jurisdiction to investigate and prosecute these cover-up efforts despite the fact that the original assaults took place in Cambodia, because they constitute direct violations of U.S. laws involving the investigative work of the team of FBI agents sent to examine U.S. crimes that were perpetrated against at least one U.S. citizen, Ron Abney of the International Republican Institute, who was injured in the grenade attack. Prime Minister Hun Sen may seek to claim "head of state immunity" for his alleged involvement in the grenade attacks and the cover-up efforts. But his subordinates who were and are subject to his control and supervision, and who are heavily implicated in the grenade attack and the resulting cover-up, should be prosecuted to the full extent of U.S. law. Though we recognize that Hun Sen himself may be immune from criminal process and prosecution during the course of his visit to the United Nations General Assembly Session starting on September 23, 2010, it is important that his involvement in the U.S. crimes that have been described is recognized, and that his subordinates who participated in these crimes are held fully accountable.

Each of the Complainants filing this Petition and named on the Cover Page were adversely affected by the federal crimes described herein. The Sam Rainsy Party, then known by a different name, was the organizer of the political rally that was subjected to grenade attack on March 30, 1997. Sam Rainsy, the leader of that party was the main target of the grenade attack. Each of the other named Complainants are individuals who themselves, or through close family members, were directly affected by the grenade attacks, and by the cover-up effort that prevented the perpetrators of the attacks from being identified, prosecuted and brought to justice. This includes U.S. citizen Ron Abney, who was present in Cambodia at the time of the grenade attack as a representative of the International Republican Institute, and whose injuries during the attack served as the jurisdictional basis for the FBI investigation.

Among the individuals named in this Complaint has having directly participated in the criminal activities as described and explained herein are Hun Sen, present Prime Minister of Cambodia, General Huy Pised, General Hing Bun Heang, Chinn Savon, and Mok Chito. Others may be identified as being involved in the described obstruction of justice as a result of the investigation that we are requesting take place.

II. The FBI Investigation and Findings Regarding the Grenade Attack. Although the FBI investigation of the grenade attack at the 1997 political rally was never completed, in part because of the obstruction and threats imposed by Cambodian Government officials, the official reports issued by the FBI team, many of which were submitted to the U.S. Congress, suggest heavy involvement in the attacks and in resulting U.S. crimes related to the cover-up efforts by Hun Sen and his direct subordinates. For example, it was widely reported in the local media, and corroborated in the FBI report, that members of Hun Sen's personal bodyguard unit, subject to his direct control and supervision, played a major role in the grenade attack, and may well have planned and organized them. Several witnesses confirmed that a large number of the members of Hun Sen's Bodyguard Unit (2nd Battalion, 17th Regiment) were stationed at the rally, which was a highly unusual practice for political demonstrations of this type since Hun Sen himself was not present, and that members of this military unit protected the perpetrators and facilitated their escape by preventing participants at the rally, and those responsible for protecting the speakers from chasing and capturing the grenade throwers as they fled the scene. The Phnom Penh Post, for example, in a front page story headlined "Grenade Suspects Unmasked" published in their May 30-June 12 edition reported that "Witnesses have said that at least two of the grenade throwers fled past ... part of the bodyguard detail of [then] Second Prime Minister Hun Sen in the park at the time of the attack ... who prevented other people from chasing them." The same article indicates that one of Sam Rainsy's personal bodyguards was reported to have told journalists that Hun Sen's bodyguard detail "prevented him from chasing the grenade throwers." A similar report appeared in the Cambodia Daily of April 2, 1997 in an article headlined "Witness Accuses Troops of Assisting Attackers." It quotes a motorbike driver who witnessed the attacks as saying that he "saw soldiers preventing protesters from pursuing the attackers."

The official FBI report of the grenade incident makes similar allegations, confirming the likely involvement in the attacks by Hun Sen's bodyguard unit. The FBI report of November 24, 1998, issued to the public by a Staff Report of the U.S. Senate Committee on Foreign Relations dated October, 1999 (Senate Report 106-32, 106th Congress, 1st Session) was cited as the basis for conclusions by the Senate Foreign Relations Committee staff in submitting the FBI report to the Chair and Ranking Minority Member of the Senate Foreign Relations Committee that:

• Members of Hun Sen's Bodyguard Force participated in the planning and execution of the March 30, 1997 attack;
• Hun Sen, being only one of two people with authority over the Bodyguard Force [the other being General Huy Pised, Commander of the Unit] must have known and approved of the attack; and,
• By June, 1997, the U.S. Government was in possession of overwhelming evidence of conclusions number 1 and number 2 ....

Similar conclusions are outlined in a letter from the FBI to Senator Jesse Helms, then Chair of the Senate Foreign Relations Committee, dated February 19, 1999 (page 21, et seq in the Appendix attached to the Committee's Report).

These findings relating to the involvement of Hun Sen and his subordinates in the grenade attacks are significant and are highly relevant to the subsequent cover-up efforts, because they indicate that Cambodian government officials at the highest level under Hun Sen's supervision had a strong motivation for preventing the true facts concerning the attacks from coming out, for covering up the crimes, and for preventing the FBI from doing its investigative work on an effective and thorough basis, in violation of U.S. criminal laws as detailed in this Complaint.

III. The Misrepresentations and Threats Made to the FBI Investigative Team, and the Obstruction of Their Investigative Efforts, Violate U.S. Criminal Laws. As the recent prosecution and trial of Former Governor of Illinois Rod Blagojavich recently demonstrated, lies and misrepresentations made to federal investigators during the course of their official investigations, and efforts to obstruct their investigative efforts, may in and of themselves constitute separate and additional violations of federal criminal law, apart from the original crimes that may have been committed that were being investigated by federal authorities, and that were unlawfully made subject to cover-up efforts. Section 1001 of Title 18 of the United States Code makes it a separate and additional crime to make any "false, fictitious, or fraudulent statement" to a federal investigator, such as an FBI agent. Chapter 73 of Title 18 of the United States Code makes it a federal crime to attempt to obstruct proceedings or investigations of U.S. agencies (Section 1505), and specifically to obstruct criminal investigations of the type being carried out by the FBI in Cambodia (Section 1510). In addition, there is evidence that threats were made to the personal security and safety of at least one of the FBI agents participating in the investigation, constituting a violation of 18 U.S.C. Sections 115(a)(1)(B) and (b)(4), making it a federal crime subject to ten years imprisonment to threaten a Federal law enforcement officer "with intent to impede, intimidate or interfere with such official" in connection with the performance of their duties.

In addition to the provisions of federal criminal law that we have cited dealing with: 1. false statements and misrepresentations made to the FBI investigation team; 2. obstruction of the federal investigation; and, 3. threats made to federal officials, there may well be other violations of U.S. criminal laws implicated by efforts of Cambodian authorities under the control of Hun Sen to undermine and interfere with the FBI investigation of the 1997 grenade attacks. We encourage the U.S. law enforcement agencies where this Complaint/Petition is being submitted to carefully consider the applicability of all relevant federal criminal laws, including those that we have specifically noted.

There is ample evidence, including information provided in the FBI's own report of their investigation, that officials of the Cambodian Government under the direct supervision and control of Hun Sen participated in these violations of federal criminal laws, or, as in the case of Hun Sen, caused or aided and abetted in these violations. Set out below are examples of some of the findings that have been made that support the points made in this Petition/Complaint that violations of federal criminal laws occurred in the course of the obstruction of the FBI investigation.

1. Chhin Savon, the on-the-scene Police Commander who was responsible for the safety of the demonstrators at the March 30, 1997 political rally, is cited as not being cooperative with the FBI investigation, and deliberately withholding key witnesses from FBI investigators.

2. Colonel Mok Chito, Commander of the Phnom Penh Municipal Police force, and reportedly a relative of Hun Sen, is shown in videos made available by Reuters and other news media as being at the scene of the attacks almost immediately after the explosions. He was not made available for interviews by the FBI, on the orders of Chhin Savon, who claimed he was "not available."

3. Huy Pised, the Commanding General of the Hun Sen Bodyguard unit is cited along with Chhin Savon as being "uncooperative" with the FBI investigation.

4. One of the alleged perpetrators of the attack, named "Brazil," who was identified from FBI sketch artist drawings, was in the custody of General Nhiek Bun Chhay, a Cambodian government official, but somehow "escaped" when the FBI asked that he be made available for an interview, and no information was made available to the FBI concerning the circumstances of his escape. He may have ended up in the hands of the Hun Sen forces who took control of the military headquarters where Brazil was being held during the coup d'etat in July, 1997. As a result, Brazil was never made available for interview by the FBI despite numerous requests.

5. According to a May, 1997 report by a Cambodian police official providing information to the FBI, several eyewitnesses claimed that only hours after the attack "two men who looked like suspects" identified in the FBI sketch artists report "were seen boarding a helicopter in the company of Him Bun Heang, the Deputy of General Huy Pised, Commanding General of the Hun Sen Bodyguard unit, and another Cambodian official. Commander Teng Savong denied this allegation.

6. One of the FBI investigators is reported to have said that "Those men who threw the grenades are not ordinary people, they are Hun Sen's soldiers," and to have substantiated this statement by pointing out that the grenade throwers "escaped into the nearby [Hun Sen military] compound, abetted by guards who opened the gates for them and who then denied seeing anything."

7. FBI investigators confirmed that General Pised and his subordinates "lied to us" when they reported that there were only 15 members of the Hun Sen bodyguard unit on duty at the scene of the political demonstration and grenade attacks, when in fact there were "up to 40" members of the unit on site. These bodyguard unit members also lied to FBI investigators when they claimed "that they did not see any perpetrator of the grenade attack cross their line," and that they saw nothing.

8. Personal threats are reported to have been made to U.S. Embassy officials against FBI investigator Thomas Nicoletti with the intention of intimidating and influencing his and the FBI's investigative efforts.

It is our understanding that no statute of limitations period applies to Title 18 Section 1001, Title 18 Chapter 75, and Title 18 Section 115 violations, as no time limit is mentioned in any of these provisions, despite the fact that the violations occurred in connection with federal investigations that took place in 1997. Moreover, even if a time limitation applied, there is evidence that the cover-up efforts kept information about these crimes from being made public until recently, thereby tolling any time limits that may be applicable.

IV. Why These Violations of Federal Law Require Attention Despite the Passage of Time Since the Crimes Were Committed. The Petitioner/Complainants are very well aware that the criminal acts that serve as the basis for this Complaint were committed some time ago. They also are aware that since the actions of officials of a foreign government are involved, sensitive political and foreign policy issues are raised by this Complaint that might counsel for caution or inaction on the part of the U.S. government in deciding whether investigation and prosecution of the federal crimes is justified. Nevertheless, there are important reasons, despite the passage of time and potential foreign policy impacts, why Hun Sen and his subordinates should be held accountable under U.S. law for their actions in interfering with the FBI investigation of the attack on a political rally in Cambodia in 1997 that resulted in injuries to a U.S. citizen, and death and injuries to so many Cambodians.

No one that directly interferes with a U.S. criminal investigation should be treated with impunity because they are foreign citizens, or committed their violations of U.S. law in foreign nations. The integrity of our criminal justice system and the rule of law demands that justice be done, even if the criminal violations took place some time ago. As important, recent developments in Cambodia suggest that Hun Sen and his subordinates are continuing their efforts to escape justice and avoid the reach of the law in many new ways that demand attention. If they can avoid responsibility for past acts, they are emboldened to commit further abuses, and that seems to be the pattern that is developing.

Recent reports indicate that Hun Sen's government is seeking to interfere with and undermine the investigations and prosecutions that are being undertaken by the Special International Criminal Tribunal (officially referred to as the Extraordinary Chambers) for Cambodia that was established under joint United Nations and Cambodian auspices to deal with war crimes and crimes against humanity that took place during the Khmer Rouge regime from 1975 to 1979, when more than 1.7 million Cambodians were subjected to genocide for political reasons. Notably, Hun Sen was a member of the Khmer Rouge military during that period. Though the International Tribunal was established in 2003, there have been few prosecutions and convictions, largely attributed to "interference by the Cambodian government." The Phnom Penh Post reported on September 13, 2010 that the Cambodian judges on the Tribunal, who are appointed and controlled by the Hun Sen regime, have refused to allow fair investigations to take place, and a number of high level government officials have refused to honor subpoenas to testify, "reinforcing serious concerns about interference" with the Court from the Hun Sen government. "The big question is ... whether the court will be able to deliver a fair trial according to international standards, or whether we're going to have a trial in the usual Cambodian tradition where the government decides the outcome," according to one of the lawyers at the Tribunal. This sounds very reminiscent of how the Hun Sen government handled, and interfered with, the FBI investigation of the 1997 grenade attack. News reports just were issued on September 16, 2010, that four additional high-level leaders of the Khmer Rouge genocide had been indicted by the Tribunal. They were accompanied by continuing concerns being voiced about "political interference" and a "lack of cooperation" by Hun Sen's government, based on the reality that many former Khmer Rouge officials hold senior positions in the current administration." (Reuters article "UN Backed Tribunal Indicts 4 Khmer Rouge Leaders," Sept. 16, 2010)

The Hun Sen government also is associated with a number of recent repressive policies and actions aimed at limiting and punishing political opposition. The National Public Radio program "The World" aired a report on August 10, 2010 indicating that the Hun Sen government was in the process of adopting a new law, the Non-Government Organization Law, that would effectively prevent private groups from engaging in opposition political activities, allow the government to disband and prosecute groups that disagreed with government policies without any due process standards, and authorize the imprisonment of NGO leaders. "The concern," according to The World correspondent Mary Kay Magistan, "is that ... the squeeze on civil society is only getting worse and the proposed NGO law will give the government yet another way to silence voices and challenges it would prefer not to hear. Magistan suggests that the new policy is reminiscent of when Hun Sen first was installed as Prime Minister, when "no opposition parties, no democratic elections" and no non-governmental activities were permitted by the government.

Amnesty International has issued a special report on Cambodia human rights non-compliance concerns to the 15th Session of the United Nations Human Rights Council indicating that the problem of "impunity" -- the failure of the Cambodian government to secure justice in instances of major human rights abuses -- has been on ongoing issue that is not being addressed. Their report notes many cases where, "Those responsible for the homicide of several civil society figures have still not been identified and brought to justice." (Amnesty 2010 Report, page 7) This includes many current cases, including that of trade unionist Chea Vichea, shot dead in 2004, trade unionist Hy Vuthy, killed in February 2007, and journalist Khim Sambor, murdered with his son in 2008, along with eight other journalists working for opposition media. Similar concerns are voiced in a special report of the United Nations Special Rapporteur on Human Rights in Cambodia, Professor Surya Subedi, noting "various shortcomings in the criminal justice system" producing "numerous ... instances of miscarriage of justice," ... and many "constraints on the judiciary's ability to act" on an independent basis. Human Rights Watch Asia Director, Brad Adams, also recently noted the Cambodian government's "relentless crackdown on critics" and on opposition political figures. (January 28, 2010 Human Rights Watch Statement)

Under these increasingly repressive circumstances, where impunity has become an ongoing and commonplace policy of the Hun Sen government to prevent the proper administration of justice, the investigation by the U.S. of Hun Sen's interference with the FBI probe in 1997 will be an important reminder that the rule of law, and accountability for violations of U.S. criminal sanctions, can not be ignored.

V. Action and Relief Requested. In view of the likelihood of the wide range of federal criminal law violations that have been identified and described above, Complainant/Petitioners hereby respectfully request that the appropriate U.S. law enforcement agencies, including the Federal Bureau of Investigation, the U.S. Department of Justice Criminal Division, and the U.S. Attorney for the Southern District of New York (where Hun Sen and his subordinates will be physically located on and around September 24, 2010 during his visit to the United Nations General Assembly Session):

1. Promptly and fully investigate the violations of federal U.S. law that have been alleged related to misrepresentations made to the FBI team investigating the 1997 grenade attack in Cambodia, and to the attempts that were made to obstruct their investigations.

2. Identify and seek the criminal accountability of those responsible for violations of U.S. criminal laws, including Hun Sen to the extent that any head of state immunity claim that he may make is not applicable. It should be noted that the grenade attack on the general population that is involved, resulting in mass murders, may well constitute "crimes against humanity" under the definition provided in Section 7 of the International Criminal Court Statute as a "widespread ... attack directed against any civilian population" that result in murder or persecution based on political grounds. As such, head of state immunity claims would not be available under Article 27 of the Statute, and time limits on prosecutions would not apply.

3. Issue a comprehensive public report on the findings made by the FBI team investigating the 1997 grenade attack, and the findings resulting from the current investigation of the unlawful cover-up efforts that have been requested in this Petition and Complaint.

Respectfully submitted this 21st day of September, 2010 by:

__________________________
Morton Sklar
Founding Executive Director Emeritus (retired)
World Organization for Human Rights USA

On behalf of the Sam Rainsy Party (the largest political opposition party in Cambodia) and the other named Complainants.

General Contact Information:
Email: mshumanrights@verizon.net
Tele: (1) (301) 946-4649
Contact information for the individual complainants can be provided on request to government prosecutors, and has been withheld in this submission for security reasons.

Note: This Complaint and Petition is filed by Mr. Sklar as Attorney of Record in his personal capacity, and is not an official submission or action of Human Rights USA.