Hon. Kevin Andrews MP Chair of the Human Rights Sub Committee Joint Standing Committee on Foreign Affairs, Defence and Trade PO Box 6021 Parliament House Canberra ACT 2600
April 22, 2020
Dear Mr Andrews,
Inquiry into whether Australia should enact legislation comparable to the United States Magnitsky Act 2012
I am submitting this document in my capacity as a private individual. As a former long-standing Member of Parliament for the state of Victoria representing many Cambodian-Australian constituents, and as current president of the Cambodian Australian Federation, I have spent many years speaking publicly about human rights abuses perpetrated by the Cambodian government and advocating for the respect of human rights in Cambodia. For doing this, I have been personally threatened by the ruling party1 and banned from returning to the country where I was born.2
Australia is one of Cambodia’s largest donors and has been closely involved with development and the promotion of human rights in the country. The Australian government provided an estimated $79.7 million in total Official Development Assistance to Cambodia in 2018-2019, which included an estimated $56.1 million in bilateral funding.3 Since the Paris Peace Accords of the early 1990s, Australia has played a critical role in fostering democracy and furthering the cause for human rights in Cambodia.
Despite this, Cambodia’s ruling party continues to violently suppress all opposition to its decades-long rule. Over the past few years, Prime Minister Hun Sen’s government has tightened its grip on the nation, disbanding the legitimate opposition party and sweeping away independent media and civil society groups that continued to hold the ruling Cambodian People’s Party (CPP) to account for its actions.
Members of Cambodia’s ruling elite have used and abused their power and privilege to enrich themselves at the expense of their country’s development. Over the years, a number of these seemingly untouchable individuals have begun to use Australia as a haven to launder their ill-gotten wealth and extend their influence and impunity into our community.
Magnitsky-style sanctions will keep human rights abusers and corrupt officials out of Australia and its financial system. Sanctioned Cambodians will have their assets frozen and be banned from entering the country, ensuring national security at no cost to the taxpayer. These sanctions would show Australian solidarity with those fighting for human rights and democracy around the world.
The United States, Canada and the United Kingdom have already adopted similar legislation. The European Union has also begun to develop these kinds of laws. A lack of similar sanction mechanisms in Australia reduces the impact of a collective global effort. Unless the government stands with its
1 https://www.theguardian.com/australia-news/2016/oct/13/victorian-mp-hong-lim-warned-he-will-be-beaten-if- he-returns-to-cambodia 2 https://www.abc.net.au/news/2016-08-18/victorian-mp-calls-for-countries-to-up-pressure-on- cambodia/7759698 3 https://www.dfat.gov.au/geo/cambodia/development-assistance/Pages/development-assistance-in-cambodia democratic allies and adopts this policy, Australia risks becoming a safe haven for Cambodian human rights abusers, corrupt officials, their family members and associates.
The Long Arm of Cambodia’s Ruling Party
In July 2018, Al Jazeera published an investigation highlighting corruption and human rights abuses in Cambodia, linking leading Cambodians with deep ties to Australia to these crimes.4 The documentary focused on Kong Vibol, the director-general of Cambodia’s General Department of Taxation and a senior member of the ruling CPP. This investigation raised serious allegations of money laundering and defrauding the Australian government, including providing fraudulent information regarding his residency in Australia. The allegations also raised questions over how he could afford millions of dollars’ worth of Australian properties on an official government salary of around $1,300 per month.5 The Australian Securities and Investments Commission has yet to pursue an investigation into Kong Vibol.
Without more strategic legislation, Australia will encounter unnecessary difficulties in preventing Cambodian human rights abusers from sheltering their ill-gotten gains in Australia’s financial system. In February 2019, the Financial Action Task Force (FATF)6, an inter-governmental organisation that leads the global fight against money laundering and terrorist financing, included Cambodia on a “grey list” over concerns it is vulnerable to the concealment of illegally acquired money.7
The FATF found that Cambodia had never prosecuted a money-laundering case due to high levels of corruption in the judicial system. Nor did the Cambodian Financial Intelligence unit properly supervise the country’s booming casino and real estate sectors. These sectors have long been identified by organisations such as the United Nations Office on Drugs and Crime as very likely exposed to money laundering by organised crime groups8.
Without Magnitsky-style legislation, Australia lacks the legal tools that other countries have successfully used to prevent such money laundering and financial infiltration. Indeed, senior members of the Cambodian regime have already amassed multi-million dollar properties and business portfolios in cities throughout Australia. Credible public reports910 have shown Cambodian officials and their family members have, or had, lucrative assets in Australia despite paltry government salaries. These include, but is not limited to:
- Dy Vichea, Lieutenant General, director of the Central Security Department, and son-in-law of the Prime Minister11
4https://www.aljazeera.com/blogs/asia/2018/07/threats-corruption-scenes-cambodia-election-crackdown- 180713045407248.html 5 https://www.aljazeera.com/blogs/asia/2018/07/threats-corruption-scenes-cambodia-election-crackdown- 180713045407248.html, https://www.sbs.com.au/news/cambodian-tax-boss-faces-jail-over-aussie-residency- claims 6 http://www.fatf-gafi.org/countries/#Cambodia 7 https://uk.reuters.com/article/uk-cambodia-moneylaundering/cambodia-placed-on-global-money-laundering- watchlist-idUKKCN1QB0NI 8https://www.unodc.org/documents/southeastasiaandpacific/Publications/2019/SEA TOCTA 2019 web.pdf 9 https://www.abc.net.au/news/2018-07-30/champagne-with-dictators/10053664 10 https://www.aljazeera.com/blogs/asia/2018/07/threats-corruption-scenes-cambodia-election-crackdown- 180713045407248.html 11 https://www.abc net.au/news/2018-10-25/cambodian-pm-henchmen-splash-millions-on-melbourne- property/10355246 - Hun To, nephew of the Prime Minister12 - Thai Jackie Thi Tien, wife of Hun To - Kong Vibol, director-general of the General Department of Taxation13
Through Magnitsky-style legislation, the Australian government can demonstrate that it will not tolerate any further illicit transfers of illegally acquired money from Cambodian officials, their family members or associates.
Passports for the Highest Bidder
Considering the known dubious investments in Australian property and businesses by Cambodia’s wealthy and political elite, the Department of Home Affairs should internally review procedural safeguards of its various investment-for-visa schemes14. Some of these schemes allow an individual and their family to remain in Australia permanently and ultimately apply for citizenship.
As in Australia, reports have shown that Cambodia’s ruling elite have amassed millions of dollars in assets abroad in countries throughout Europe15. These individuals have used their ill-gotten wealth to buy foreign citizenship in countries like Cyprus, thereby gaining legal access to the entire European Union (EU). After fierce backlash against this citizenship for investment scheme, the Cypriot Interior Minister announced in November 2019 that the government had started the process of stripping at least eight Cambodian beneficiaries of the citizenship they had received under the country’s investment program16. These individuals include:
- Hun Kimleng, the Prime Minister’s niece. - Neth Savoeun, Hun Kimleng’s husband and Cambodia’s national police chief. - Vicchuna Neth, daughter of Hun Kimleng and Neth Savoeun - Choeung Sopheap, businesswoman and close friend of the Prime Minister’s wife. - Lau Ming Kan, Choeung Sopheap’s husband and CPP senator. - Aun Pornmoniroth, the Prime Minister’s long-time financial adviser and finance minister. - Im Paulika, Aun Pornmoniroth’s wife. - Hun Chantha, the Prime Minister’s niece.
Legitimate investments into Australia’s economy should be encouraged. But considering the country’s proximity and relationship with Cambodia, the Australian government should be wary of similar Cambodian investments from Politically Exposed Persons (PEPs)17 for visas and citizenship. Magnitsky-style legislation could help avoid an embarrassment like Cyprus and provide the government with an effective tool to freeze the assets of human rights abusers or their family members who flout the laws of Cambodia yet seek safe haven in Australia.
12 https://www.smh.com.au/national/inquiry-links-cambodian-leaders-nephew-to-drug-trafficking-money- laundering-20120325-1vsn8.html 13 https://www.voanews.com/east-asia/cambodian-tax-chief-lied-australian-corporate-regulator 14 https://immi homeaffairs.gov.au/visas/getting-a-visa/visa-listing 15 https://www.reuters.com/investigates/special-report/cambodia-hunsen-wealth/ 16 https://uk reuters.com/article/uk-cyprus-citizenship-cabinet/cyprus-plans-to-strip-citizenships-after-uproar- over-passports-idUKKBN1XG1RB 17 https://www.austrac.gov.au/business/how-comply-and-report-guidance-and-resources/customer- identification-and-verification/politically-exposed-persons-peps Targeting Human Rights Abusers
In addition to safeguarding our own national security, Australia could use Magnitsky-style legislation to precisely target individual human rights abusers while preserving diplomatic relations with the Cambodian government as a whole.
The United States has effectively used its Global Magnitsky Human Rights Accountability Act to target Cambodian actors who engage in corruption and perpetrate serious human rights abuses. To date, the U.S. Department of the Treasury’s Office of Foreign Asset Control (OFAC) has imposed visa and asset sanctions against the following individuals:
- Hing Bun Hieng18, commander of Cambodia’s Prime Minister Bodyguard Unit19. - Try Pheap20, engaged in large-scale illegal logging21. - Kun Kim22, former senior General in the Royal Cambodian Armed Forces (RCAF). - King Chandy23, relative of Kun Kim. - Kim Sophary24, relative of Kun Kim. - Kim Phara25, relative of Kun Kim.
The United States may also be expanding its ability to target the Cambodian government or human rights abusers through multiple legislative bills. The Cambodia Trade Act of 201926 contemplates withdrawing the country’s duty-free exports under the Generalized System of Preferences (GSP) program if there are labour rights abuses. The bills—Cambodia Democracy Act of 201927 introduced by the House, Cambodia Democracy Act of 201928 introduced by the Senate, and the Cambodia Accountability and Return on Investment Act of 201929—all target individuals who are responsible for acts which undermine democracy in Cambodia. These sanctions are directed at senior Cambodian government, military, security forces, or entities controlled by such individuals. Sanctions include blocking assets and restricting entry of sanctioned individuals into the United States.
Australia is not obligated to adopt similar measures taken by the EU or US in their approach toward Cambodia. However, these measures will be more powerful in other countries if Australia stood in solidarity with its democratic allies to hold Cambodian human rights abusers accountable for their actions.
18 https://sanctionssearch.ofac.treas.gov/Details.aspx?id=6619 19 https://home.treasury.gov/news/press-releases/sm0411 20 https://sanctionssearch.ofac.treas.gov/Details.aspx?id=7953 21 https://home.treasury.gov/news/press-releases/sm849 22 https://sanctionssearch.ofac.treas.gov/Details.aspx?id=7948 23 https://sanctionssearch.ofac.treas.gov/Details.aspx?id=7949 24 https://sanctionssearch.ofac.treas.gov/Details.aspx?id=8003 25 https://sanctionssearch.ofac.treas.gov/Details.aspx?id=8004 26 https://www.congress.gov/bill/116th-congress/house- bill/1376?q=%7B%22search%22%3A%5B%22cambodia%22%5D%7D&r=2&s=1 27 https://www.congress.gov/bill/116th-congress/house- bill/526?q=%7B%22search%22%3A%5B%22cambodia%22%5D%7D&r=1&s=1 28 https://www.congress.gov/bill/116th-congress/senate- bill/3081?q=%7B%22search%22%3A%5B%22cambodia%22%5D%7D&s=1&r=4 29 https://www.congress.gov/bill/116th-congress/senate- bill/1468?q=%7B%22search%22%3A%5B%22cambodia%22%5D%7D&s=1&r=3 Withdrawing Trade Preferences
Democracies worldwide have already taken meaningful measures to hold the Cambodian government and its officials accountable for violations against human rights. Australia should not just follow suit, it should take the lead.
On February 12, 2020 the European Commission decided to withdraw part of the tariff preferences granted to Cambodia under the European Union’s Everything But Arms (EBA) trade scheme due to serious and systematic violations of the human rights principles enshrined in the International Covenant on Civil and Political Rights (ICCPR).30
The EU has repeatedly reiterated the need for the government of Cambodia to re-open the political space in the country, to create the necessary conditions for the re-establishment of a credible opposition and to initiate a democratic process of national reconciliation through genuine and inclusive dialogue.
Despite this, the CPP has continued to crack down on the fundamental rights and freedoms guaranteed to the Cambodian people under the nation’s constitution. Because of the government’s actions, a temporary suspension of trade preferences amounting to roughly $1 billion dollars is set to take effect on August 12, 2020.
The Ruling Party’s Long War on Human Rights
Cambodia’s journey toward democracy has faltered over the last two years as the ruling Cambodian People’s Party (CPP), now in its fourth decade in power, orchestrated the dissolution of its main political opposition, the Cambodia National Rescue Party (CNRP), banned senior officials from political activity and reallocated almost all local-level elected positions held by the opposition to itself. This undemocratic consolidation of power was quickly followed by the Senate and National Assembly elections, where the ruling party used non-competitive elections to seize all parliamentary seats, handing it absolute control over the legislative process.
This political repression has been accompanied by an unprecedented crackdown on fundamental rights, including freedom of assembly and association. The independent media has been decimated, with newspapers shuttered and critical radio transmissions shut down nationwide. Journalists have been repeatedly targeted on politically motivated espionage charges. The internet, one of the few remaining spaces for public debate, is closely monitored by the government specifically by a so-called “Cyber War Unit” within the interior ministry.
Civil society groups have been threatened, their actions have been curtailed, and their activities heavily monitored by security and military forces. The ruling party and Prime Minister Hun Sen now hold absolute authority in the country, and have shown no willingness to release their grip on power.
The Cambodian government’s paranoia is not exclusively reserved for Cambodian nationals. In June 2017, James Ricketson, an Australian journalist and filmmaker, was arrested after flying a drone to capture footage of a CNRP rally. Ricketson was detained in Cambodia’s notorious Prey Sar prison for 15 months before he was eventually found guilty of espionage in August 201831. He was sentenced to six years in prison, but received a royal pardon and was deported back to Australia in September 201832.
30 https://ec.europa.eu/commission/presscorner/detail/en/ip 20 229 31 https://www.bbc.co.uk/news/world-asia-45364695 32 https://www.theguardian.com/australia-news/2018/sep/21/cambodia-pardons-australian-filmmaker-james- ricketson Many of those who oppose the government are imprisoned. Overcrowding in Cambodian prisons is at an all-time high33. The government fails to uphold the presumption of innocence enshrined in Cambodia’s constitution34 by excessively using pre-trial detention and withholding bail measures. Cambodia continues to imprison human rights defenders, land activists, journalists, students, opposition party activists, and supporters as well as ordinary citizens who have dared to speak out against the regime.
Others never make it to prison. In July 2016, prominent political analyst Dr Kem Ley was publicly shot dead in an execution-style killing. The murder came days after Kem Ley spoke on a radio talk show about a recent Global Witness report35 on the business dealings of the Prime Minister’s family. One suspect, a former soldier, confessed to the murder, which he claimed was over an unpaid debt - an explanation completely lacking in credibility. Dr Ley’s widow, Bou Rachana, and their five sons have since sought and received asylum in Australia. They have yet to receive justice.
The Next Step
In September 2017, CNRP leader Kem Sokha was arrested and charged with treason on the basis of a speech he gave in Melbourne in 2013 advocating grassroots community organising. Sokha was jailed for a year in solitary confinement in a remote prison near the Vietnamese border before being transferred to house arrest in September 2018. He remained under house arrest until November 2019, when his bail conditions were revised to allow him to leave his home. Sokha is currently banned from engaging in any political activity and cannot leave Cambodia.
His criminal trial began on January 15, 2020. Initially, independent media, civil society and members of the Cambodian public were deliberately barred from attending court proceedings36. When these groups were eventually allowed access, court observers—including representatives of the Australian Embassy—were confronted with a criminal proceeding which lacked impartiality, transparency, and fair trial guarantees consistent with the nation’s constitution. He is charged with conspiracy under Article 443 of the Criminal Code and faces up to 30 years in prison if found guilty. His trial is still ongoing.
Despite his party’s dissolution in 2017, harassment against former CNRP members continue unabated. In November 2019, the Prime Minister mobilised and deployed the military in an unprecedented attempt to prevent the entry of former CNRP leader Sam Rainsy into Cambodia37. Shortly thereafter, the UN Special Rapporteur for human rights in Cambodia expressed grave concerns about a heightened political crackdown resulting in over 200 cases of harassment and judicial actions against former CNRP members38. At least 70 mass arrests and serious charges of “plotting against the state” were weaponised against citizens who were merely exercising their freedom of expression. These individuals were later released on bail, but could face re-arrest at any time39.
33 https://www.amnesty.org.uk/press-releases/cambodia-overcrowded-prisons-are-ticking-time-bomb 34 Article 38 – Constitution of Cambodia 35 https://www.globalwitness.org/en/reports/hostile-takeover/ 36 https://uk reuters.com/article/uk-cambodia-politics/united-states-urges-cambodia-to-open-politicians-treason- trial-to-media-idUKKBN1ZF17C 37 https://www.aljazeera.com/news/2019/11/cambodia-sam-rainsy-faces-hurdles-attempts-return-home- 191108034858453.html 38 https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25260&LangID=E 39 https://www.voanews.com/east-asia-pacific/cambodias-pm-orders-release-opposition-leaders