Toxic Justice: Human Rights, Justice, and Toxic Waste in Cambodia

I.SUMMARY AND RECOMMENDATIONS

In November 1998, nearly 3,000 tons of Taiwanese toxic waste were dumped in a field in the southern port of Sihanoukville. At the time, there was no law banning such dumping, but Minister of Environment Mok Mareth said publicly and repeatedly that toxic waste imports were prohibited in Cambodia and a national policy to that effect was in force. Dumped in an open field, the waste was scavenged by poor villagers, many of whom later complained of sickness; one quickly died. The Cambodian leadership, expressing outrage, promised a thorough investigation. Local people panicked: thousands fled the city. Others in Sihanoukville exercised their constitutional rights and in December held two days of public demonstrations, blaming government corruption for the presence of the toxic material. Even some local officials told Human Rights Watch they believed that demonstrations were warranted, provided they were lawful and peaceful. The demonstrators did not obtain permission to protest publicly, however, and when some of them grew violent, ransacking several buildings, police made several arrests. The local authorities sought to blame incitement of the riots on two human rights defenders, Kim Sen and Meas Minear, staff members of the Cambodian human rights group Licadho, or Cambodian League for the Promotion and Defense of Human Rights. Arrested in December, the two were held for a month and charged with committing robbery and property damage. No convincing evidence has been presented against them, but they still face up to ten years in prison if convicted. The arrests of Kim Sen and Meas Minear served to divert attention from the cause of the demonstrations and sent a chilling message to environmental activists and other nongovernmental groups. They provide another example of the authorities' longstanding antagonism towards human rights groups. At the same time, the judicial process against those responsible for the public health menace falls short of providing the thorough investigation and accountability promised by the Cambodian government and ensuring that the necessary checks and balances are put in place to prevent new cases of dumping. On the Taiwan side, the waste export was illegal, according to environmental authorities, but in Cambodia, the importation of the waste was almost certainly approved, as the prime minister himself has noted, by senior government officials, who are widely accused of having accepted bribes. Importation and environmental regulations are inadequate, as are scientific technology and expertise, to cope with issues such as toxic waste. Most significantly, there was no law that defined, restricted or prohibited hazardous waste imports. As this report will illustrate, the Cambodian government appears to bear some responsibility for the dumping and the resulting violations of economic and social rights that followed. While Cambodia did not at the time have a law banning the import of toxic waste, there was a 1996 law containing penalties for acts which cause "danger to human bodies or lives, to private property, to the environment, or to natural resources." The arrest of one Cambodian importer, the filing of preliminary charges against three government officials under this law, and the temporary suspension of one hundred other officials indicate some effort on the part of the Hun Sen government to act responsibly and prosecute the perpetrators. There is concern, however, that the three officials charged may be scapegoats. The real test, therefore, will be whether investigations by the environment and finance committees of the National Assembly, now underway, into how the dumping happened, including serious allegations that high-level corruption was involved, will be thorough and fully transparent, with the results made public.

The dumping of toxic waste in Cambodia illustrates the linkage between social and economic rights and political and civil rights. To defend their right to health, Cambodians need to have the ability to demand restitution for perceived violations of that right, both through exercise of their rights to freedom of assembly and expression, as well as through a functioning legal system, free of political influence, that will allow them to press claims. In that context, human rights defenders need to be able to monitor possible rights violations free of harassment or intimidation. The authorities violated the rights of human rights defenders in this case by detaining them arbitrarily and also by not allowing pre-trial release until after they had been detained for a month, thereby treating them more harshly than the officials arrested for permitting the importation of the toxic waste in the first place.

The government, in acknowledgment that the waste dumping was unacceptable and counter to government policy, moved to order the removal of the Taiwanese waste from Cambodia. The government also, in late April 1999, approved a sub-decree which unequivocally bans the import of toxic waste in the future. A month-long Human Rights Watch investigation in Sihanoukville and Phnom Penh has found that:

•Kim Sen and Meas Minear are being prosecuted for actions that were well within their human rights mandate. Their only "crimes" were to provide information on human rights and the law to people who requested advice on how to protest against the toxic waste and to be on the spot when the demonstrations took place in order to monitor any human rights violations that might occur.

•Kim Sen and Meas Minear's legal rights have been repeatedly violated. For instance, their arrests were unlawful, as no arrest warrants were produced. Their arrests and detention were improper, as the Court of Appeal has since confirmed, because the Sihanoukville court did not first review the evidence against them. Nevertheless, the charges against them have not been dropped, although the two are no longer in detention.

•At least two alleged demonstrators who were also arrested were tortured in police custody.

•There is confusion over the precise number of people arrested during the demonstrations, and what happened to them.

•It appears virtually impossible that Kim Sen and Meas Minear can receive a fair trial from the Sihanoukville court.

•The government has so far failed to live up to promises to thoroughly investigate the importation of the waste. Despite the reported temporary suspensions of some one hundred suspected officials, the results of any government internal investigation into this case have not been made public.

•The waste dumping endangered the right of Sihanoukville's residents under international law to the highest possible standards of physical and mental health.

RECOMMENDATIONS

Human Rights Watch recommends that the Cambodian government:

Recognize and Respect the Rights of Human Rights Defenders

•The charges against Kim Sen and Meas Minear, as well as one of their fellow accused, market vendor Khieu Piseth, who seems to have been arrested solely because of his contact with the Licadho staff, should immediately be dismissed.

•Cambodian government leaders and, more importantly, the Sihanoukville authorities should publicly and unequivocally state that Kim Sen and Meas Minear are able to resume their human rights work in Sihanoukville, free from intimidation or reprisals.

•The government should uphold and respect the recently adopted U.N. Convention on the Rights and Responsibilities of Individuals and Organizations to promote and protect human rights. Adopted by consensus by the U.N. General Assembly on December 9, 1998, this convention includes specific responsibilities of member States to protect the rights of human rights workers.

Promote the Rule of Law and the Right to Judicial Independence and Accountability

•The Sihanoukville police should make publicly available a list of the names of all people detained during the demonstrations so that all those who were arrested can be accounted for. More generally, the police should keep a central register of detainees available for inspection.

•The National Assembly, supported by the executive branch and King Norodom Sihanouk, should urgently move to pass all necessary laws to allow the Supreme Council of Magistracy and the Constitutional Council, Cambodia's highest legal bodies, to begin functioning according to their constitutional obligations. Only when the appropriate constitutional institutions are functioning can the rule of law, and the necessary standards of conduct for prosecutors and judges, begin to be upheld.

•The Ministry of Justice should make public the findings of its internal inquiries into the Sihanoukville court's handling of the Kim Sen and Meas Minear case and submit this information to Cambodia's Supreme Council of Magistracy, the constitutional body responsible for investigating alleged misconduct by prosecutors or judges.

•The Ministry of Justice and the Supreme Council of Magistracy should launch formal investigations to determine whether Sihanoukville court officials have acted in violation of their professional responsibilities and duties. If so, the officials should be disciplined.

Safeguard the Right to Environmental, Health and Livelihood Protections

•Cambodia's Ministry of Environment should be encouraged in its efforts to draft legislation and sub-decrees (required under the 1996 environment law) on air, water and land pollution. Such draft laws and regulations should be approved swiftly by the executive and legislative branches of government.

•Recognizing that the Sihanoukville case is unlikely to be unique, the Ministry of Environment should launch an urgent investigation to identify and investigate other possible industrial waste sites in Cambodia that may pose health risks. Access to all records held by other government departments, such as Customs, should be provided in this regard.

•The government, in consultation with independent experts and organizations, should ensure periodic medical surveillance of persons exposed to the toxic waste in Sihanoukville. Any evidence of medical problems that may be attributable to the waste should be urgently and independently verified, and the government should provide necessary care and treatment for those affected, with particular attention to pregnant and lactating women. The company responsible for the waste shipment, Formosa Plastics Group of Taiwan or its subsidiaries, should not be given the final say in diagnosis and medical treatment.

•In the interests of government accountability and prevention of further such imports, the National Assembly's environment and finance committees should actively continue their investigations into the toxic waste importation. All government departments and staff should fully cooperate with these inquiries, which should be conducted in a public manner.

•The Cambodian government should actively consider becoming a signatory to the 1989 (Basel) Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. They should also consider signing the related Basel Ban, which aims to ban hazardous waste trade from industrialized to developing countries.

As a matter of principle, Human Rights Watch supports the right of every individual who was harmed by the toxic waste shipment to restitution for the injury to their right to health. We understand that both calculating such compensation and establishing the right to it on an individual basis may be logistically and legally difficult. For these reasons, Human Rights Watch urges the Cambodian government and Formosa Plastics to consult with the communities most exposed to the waste in order to provide restitution on a group basis in some acceptable form, such as the provision of a sustainable, functioning community health center or another rural institution which would improve living standards. Such an immediate measure should be without prejudice to individual claims or the liability of the government or the company.

Human Rights Watch recommends that the international community and foreign donors, in particular members of the donor consortium known as the Consultative Group on Cambodia, which in February 1999 pledged U.S.$470 million in aid, and individual international and nongovernmental organizations operating in Cambodia:

Support the Strengthening of Human Rights Protections in Cambodia

•Exert pressure on the Cambodian government to insist that the charges against Kim Sen, Meas Minear and Khieu Piseth be dropped, and that any trial of others arrested in regard to the demonstrations be fair, transparent, and procedurally correct.

•Ensure that the state of human rights and the rule of law in Cambodia be included among issues to be critically reviewed at the Consultative Group's quarterly meetings with the Cambodian government. In particular, the government should be left in no doubt that blatant persecution of human rights workers and interference in the judiciary by government officials will not be tolerated by donors.

•Make aid disbursements conditional on the establishment of the Supreme Council of Magistracy and the Constitutional Council as independent, effective, functioning organs. Continued delays in the proper establishment of Cambodia's highest judicial institutions will only perpetuate the nation's difficulties in instituting the rule of law.

Insist on Environmental Protections

•Continue to provide effective support and pressure for the government to effectively tackle Cambodia's chronic environmental problems. The toxic waste issue can and should be used to highlight the need for legislative and practical environmental protections in general.

Human Rights Watch recommends the following to the government of Taiwan:

Protect Fundamental Social and Economic Rights

•Move, as a matter of priority, to meet all the requirements of the Basel Convention that regulate the export of hazardous waste. If, as a non-member of the U.N., Taiwan is unable to sign the convention, the government should independently act to pass domestic legislation and sign bilateral and multilateral agreements in line with the convention.

•Review Taiwan's environmental laws and regulations, and the penalties contained in them, to ensure that they are a sufficient deterrent to companies and organizations that may be tempted to breach them.

•Actively encourage Formosa Plastics Group, one of Taiwan's leading and most high-profile conglomerates, to provide some form of community compensation to the Sihanoukville villages closest to the waste dumpsite, as outlined above.

Human Rights Watch notes that it repeatedly sought Formosa Plastics' comments on this report. On May 4, C.T. Lee, the president of Formosa Plastics Corporation, declined our offer to comment but thanked Human Rights Watch for alerting him to the report's publication.

II.BACKGROUND: A TOXIC TRADE

On or about November 30, 1998,[1] the cargo ship Chang Shun slipped into Cambodia's southern port of Sihanoukville, an economic and tourism hub generating much-needed income for this poor and war-scarred nation. The ship's cargo was identified as 2,799 metric tons of "cement cake."[2] It was composed of chunks of solid material packed into huge, thick plastic bags, each weighing more than one ton. After three or four days of negotiation, Cambodian officials gave permission for the ship's unloading. Port laborers poured on board to hook the bags to cranes. Some of the bags fell free, smashing open as they hit the ground; dust scattered everywhere. The port workers, told that they were unloading debris from destroyed buildings, did not wear safety clothing; most wore shorts and t-shirts.[3] After unloading, the waste debris was raked up from the ship's holds. Some of the plastic bags, valuable items in a poor country like Cambodia, were ripped off their contents and stolen from the port.[4]

From December 4 to 6, day and night, the cargo was loaded onto trucks and taken to its destination. It was dumped on the outskirts of Sihanoukville, about fifteen kilometers from the port, on a plot of land just behind a small military base. Local villagers living close to the dumpsite thought this was a boon. Soon, the rush was on to scavenge the plastic sheets - ideal for crafting homemade tents, fences, and sleeping mats - and even the "cement" rubble itself. Some people came from further afield: 300 kilograms of the "cement" was later found across town near a beach, and another load of it made its way to neighboring Kampot province, according to police and environment officials.

Soon, the windfall turned sour. People began to fall sick. Pich Sovann, a port worker who had unloaded and cleaned the ship, got intense stomach pains, vomited and had breathing problems.[5] Hospitalized on December 16, he died the same day. Several other port workers were hospitalized over the next three days. Meanwhile, villagers who lived near the dumpsite started to complain of various symptoms including diarrhea, fever, vomiting, and headaches.

Cambodia, a country emerging from decades of war, genocide and poverty, faced another challenge: toxic waste. It was later revealed that the ship Chang Shun had been carrying industrial waste laced with mercury and possibly other toxins.

How It Got There: The Taiwan Side

The waste came from the largest manufacturer of polyvinyl chloride (PVC) in the world, Formosa Plastics Group of Taiwan, whose major shareholder is a Taiwanese family reputedly among the top ten wealthiest families in Asia.[6] The largest private industrial conglomerate in Taiwan, Formosa Plastics Group had total assets of U.S.$20 billion and operating revenue of U.S.$10 billion from its companies in 1997.[7] Its main subsidiaries are the Formosa Plastics Corporation and the Nan Ya Plastics Corporation in Taiwan, as well as Formosa Plastics Corporation of the United States. The Formosa Plastics Group subsidiary which actually produced the waste was the Formosa Plastics Corporation of Taiwan.

The waste reportedly came from a Formosa factory in Jenwu township in Taiwan's industrial southern tip of Kaohsiung County. It was apparently produced between 1975 and 1983 as a byproduct of a process that uses mercury to produce sodium hydroxide (caustic soda),[8] a precursor to manufacturing PVC and other products. This was not known at time of arrival in Cambodia. C.T. Lee, the president of Formosa Plastics Corporation, has since said that the company stopped using this process in 1989 but was left with at least 14,000 tons of mercury-contaminated sludge to dispose of.[9] Some of this liquid sludge was later solidified by mixing it with cement and other substances. This was intended to stabilize the waste as the mercury binds with the cement. According to C.T. Lee, an initial plan to bury the waste in a landfill not far from the Jenwu factory was dropped because of public protests. The waste remained in storage at the Jenwu plant for years, as the company looked for somewhere else to dispose of it.[10]

Formosa's initial response to the revelations of the Cambodia shipment was to deny that the waste was hazardous and to insist that its export from Taiwan was legal. It has since been proven wrong on both counts. It has also been revealed that initially Formosa wanted to send liquid sludge, not the solidified material, to Cambodia.

According to Taiwan's Environmental Protection Administration (EPA), in October 1998 Formosa applied for permission to ship more than 5,000 tons of "liquid sludge containing mercury" to Cambodia. Permission was refused because of inadequate description of the sludge contents, lack of documentation from Cambodia authorizing the import, and lack of certification that Cambodia was capable of handling such waste. On November 19, Formosa reapplied, this time to ship a batch of "stabilized, solidified" sludge to Cambodia. Within a day or two, the waste was shipped - illegally, because environmental authorities had not yet ruled on the second application - from Taiwan.[11] The shipment was further unlawful because the Formosa contractor who shipped the waste, the Taiwanese firm Ching Fu Enterprise, which uses the English name Jade Fortune International Ltd., is not EPA-certified to handle hazardous material.[12]

According to a purported contract between Formosa and Ching Fu (Jade Fortune), the latter had been hired to dispose of 2,900 tons (although the amount listed on shipping documents was 2,799 tons) of material described as "normal industrial waste." Ching Fu was supposed to break the solid waste into pieces and bury it. For this, it was to be paid the equivalent of about U.S.$100 per ton.[13]

Kaohsiung County's Department of Environmental Protection learned of the unauthorized shipment to Cambodia on December 2 and launched an investigation of Formosa for breaches of Taiwan's Waste Disposal Act.[14] The multibillion-dollar conglomerate was fined twelve times for breaches of the law in this case, fines that totaled about U.S.$48,000. Formosa's contractor, Ching Fu (Jade Fortune), was fined about U.S.$5,000, according to the department.[15] A Taiwanese environmental group, the Green Formosa Front, as of early April 1999 was suing Formosa, alleging the company filed false documentation for the export.[16]

Formosa, defending its actions to Taiwan environmental authorities, said that the material had been certified as non-toxic by an EPA-approved private inspection agency in 1993. However, subsequent EPA testing on samples of the waste showed that its mercury levels were high enough for it to be defined as hazardous waste under Taiwan regulations.[17]

How It Got There: The Cambodian Side

How Cambodia was chosen as the waste destination is uncertain. What is known is that the contractor, Ching Fu, in turn subcontracted the operation to a Cambodian firm, Muth Vuthy Import and Export Co. Ltd.[18] Formosa has blamed both contractors for not disposing of the waste "in a proper manner."[19] After the scandal broke, Muth Vuthy's president, Sam Moeun, was arrested; he remained in prison as of early April. According to court documents, Sam Moeun said under questioning that two Taiwanese men who traveled to Cambodia before the shipment arrived had deceived him, describing the waste as "stone."[20]

It is also, to date, unclear how the eventual dumpsite in Sihanoukville was chosen. The land was reportedly owned by Ros Teat, a military commander in charge of the small army base at the site. Questioned later by the Sihanoukville court, Ros Teat maintained that he sold the land in late 1998 to a "Chinese" (presumably Taiwanese) businessman and that he had not known what the land would be used for.[21]

When the shipment arrived at Sihanoukville port on November 30, 1998, alarm bells went off for officials from the Customs department and Camcontrol, the government agency responsible for inspecting imports to Cambodia. Prior import approval had not been obtained, so the ship was not immediately allowed to unload. According to court documents, Sam Moeun visited senior Customs and Camcontrol officials in Phnom Penh to facilitate importation authorization. On December 3, the Customs department reportedly sent a sample of the cargo to the Ministry of Industry, which, after inspection, allegedly declared that the material could be turned into cement or ceramics.[22] The Customs pricing department then raised the import tax on the shipment from U.S.$10 to $24 per ton, a total increase from about $28,000 to $67,000, allegedly on the orders of national Customs Director In Saroeun.[23] On December 4, In Saroeun gave his authorization for the import to be allowed.[24] Citing the Ministry of Industry's inspection, he has since denied that he knew the cargo was hazardous waste.

It is very possible that other, more senior officials were involved in the waste deal. National Assembly President Prince Norodom Ranariddh has reportedly said that Prime Minister Hun Sen told him that as much as U.S.$3 million in bribes may have been paid to government officials.[25] That figure has been widely repeated. Formosa has energetically denied paying any bribes. Nevertheless, it is generally accepted, as Prime Minister Hun Sen said days after the scandal broke, that "if there had not been high-level involvement, [the shipment] could not have been managed."[26]

Subsequently, the government announced that more than thirty Customs, Camcontrol and other officials, including In Saroeun, were suspended, and later increased this number to one hundred. On a local level, the first deputy governor of Sihanoukville, Khim Bo, widely considered to hold the most power in the city, has publicly denied any bribe-taking.[27] Meanwhile, there have been persistent rumors that the importation deal was approved at a high government level. Privately, some government and opposition political figures have pointed the finger at two senior officials, one a cabinet minister and the other the head of a powerful government bureau. The government reacted angrily to a report that senior officials approved the importation and that the proceeds went into the coffers of Hun Sen's ruling Cambodian People's Party.[28]

III.SCAVENGING AND SICKNESS

At first, people did not know anything about the waste; that's why they collected the plastic. At first, we were happy. Later, we were terrified.

- Po Theung village chief Sao Han

Exposure to the Waste

People immediately exposed to the waste included about 280 port workers who unloaded and cleaned the ship and about 2,950 local people living near the dumpsite. The waste was dumped about 500 meters off a main highway, in a slightly elevated location, which slopes away on three sides. To one side, several thousand meters away, is Bettrang commune (population about 2,850).[29] On the other side, about one hundred meters from the site, there was at the time a small community of woodcutters and their families, totaling approximately one hundred people. The woodcutters' village had a water well and several sawmills, which the cutters depended on for their living. They, and the Bettrang villagers, commonly walked across the area where the waste was dumped, in order to gather wood from the nearby forest. There are also several small streams a little further afield from the dumpsite.

No attempt was made to guard the site, or otherwise seal it off, despite it being near the army base, which the trucks had to drive through to dump the waste. According to villagers interviewed by Human Rights Watch, within four hours after trucks began to dump the waste, local residents began scavenging. They immediately saw the value of the white, triple-lined plastic covers on the waste. Some of the covers were already broken, spilling out the waste, which came in pieces ranging from brick size to half a cubic square meter, while others were still intact. The subsistence villagers used knives, their teeth or whatever else they could to rip away the plastic. "The majority of the people in this commune went there," one villager said. Another added: "Each family collected piles of plastic bags. We were very happy. We didn't know about the poison."[30] The villagers saw warning signs - some saw pictures of skulls, and others red crosses - on some but not all of the plastic bags.[31] No one was sure of what the signs meant. "Some people asked the truck drivers [dumping the waste] whether it was poisonous, but they said no," reported one villager.[32] They did wonder why no one tried to prevent their pillaging. Some villagers were told that the waste was wreckage from old buildings, while others heard that a crockery factory was to be built at the site. Some even suggested that they thought that the material was international aid to Cambodia. Back at their homes, they carved or sewed the plastic into what they wanted, including sacks for their rice harvest. When they had enough plastic for themselves, they began selling it to families further afield. Children trampled around the site, taking the chunks of waste home to use as toys, or rubbing them against twigs to try to start fires. "People walked all over the site. Their hands got dirty. They wiped their hands a little and then drank water with their hands," said one man. The authorities did not care. "The people had no idea [what the waste was], and neither did we," said commune chief In Sok.[33]

Sickness and Death

Within a few days, people began falling sick in Bettrang. Diarrhea, headache, vomiting, fever, fatigue, thirst, skin rashes or blisters, dizziness, throat pain or tightness, coughing, stomach ache, chest pain, numbness, joint pain, pained or irregular urination, and loss of appetite were among the symptoms reported. (Most people had only some symptoms, not all.) The villagers drew a connection with the waste when rats that had nibbled at scavenged plastic sheets died, as did two pigs that rooted in a pile of the rubbish.[34] The number of people affected is uncertain, but in one of Bettrang commune's three villages, Po Theung Village, an estimated 50 percent of 1,200 residents fell sick.[35] Local medical officials started to investigate, concluding that none of these illnesses were serious or life-threatening.[36] On the other side of the waste site, at the small mill village, roughly seventy percent of the small population there reported diarrhea, headaches, dizziness.[37]

On December 16, 1998, thirty-year-old port worker Pich Sovann, who had helped to unload the waste shipment and clean out the ship's holds from December 4 to 6, was hospitalized and died. In the next three days, at least five other people, some port workers, others residents who had contact with the waste, were hospitalized with some, but not all, of the same symptoms. Pich Sovann's body was cremated without autopsy. It was later found impossible to conclusively link his death, or indeed the sickness of the villagers and other port workers, to the waste (see Section VI).

IV.THE DEMONSTRATIONS

We have no permission, we have no leaders. But if the waste is not removed, we will die.

- Protesters' response to a policeman as he sought to negotiate with them

Panic

Rumors began to circulate even as the toxic waste was still being unloaded from the ship. A Phnom Penh pro-government newspaper, Sathearanak Mati (Public Opinion), apparently tipped off to the shipment, ran a front-page story in its December 5-6 edition with the headline: "Which company imports building debris into Cambodia?" It followed up with another story and photographs of the boat's unloading in its December 10-11 issue. While unsure of the content of the "building debris," both stories noted that it could be harmful to the environment and that Customs officials were aware of this possibility. Another, more widely read, pro-government newspaper, Koh Santeapheap (Peace Island), was also onto the story by December 8. By that time, local Sihanoukville authorities were investigating.

People who feared the waste was radioactive approached the second deputy governor of Sihanoukville, Hing Sarin.[38] He asked several acquaintances to look at the dumpsite, but the soldiers there refused them access, so he then ordered municipality environment and other officials to investigate. The officials soon told him that Customs, Camcontrol and port staff all denied any knowledge or responsibility, and he reported the issue to the First Deputy Governor Khim Bo.[39] By this time, a district police chief, Prum Sokhan, had been dispatched with a team of police on December 8 to bring a sample of the waste to his superior.[40] On December 11, the minister of environment, Mok Mareth, and one of his officials, tipped off by Sihanoukville environment officials and by newspaper reports, went there from Phnom Penh to investigate. The minister publicly said that the waste could be toxic or radioactive and warned people to stay away from the dumpsite. However, the other environment official assessed (correctly, as it turned out) that the waste most likely contained heavy metals such as mercury.

In the absence of hard information about the content and dangers of the waste, an alarmed populace drew its own conclusions. By the time the minister of environment warned people to stay away from the waste and news of Pich Sovann's death swept through Sihanoukville, panic was setting in. Fueled by rumors that the waste was radioactive and could kill everyone in a wide radius, people began fleeing the city. (The exodus later peaked around December 21, when at least four people were killed and eighteen injured in crashes as thousands fled the town by road, down the highway, past the dumpsite, in heavy rain.) Most of those who fled were the more wealthy, from Sihanoukville town, rather than villagers near the dumpsite. "Of course, we felt afraid, but we had nowhere to go," said one villager. It was rice harvest time and, even if they were sick, they had work to do.

Licadho

Like virtually everyone in town, the staff of the Sihanoukville branch of the human rights group Licadho heard the rumors of radioactive waste. They made a few preliminary inquiries, in line with their human rights mandate.

Licadho was established in 1992, a year after the Paris peace agreement which aimed to end Cambodia's decade-long civil war. The Paris agreement, signed by all Cambodian factions, neighboring countries and most of the world's major powers, pledged peace, democracy and respect for human rights for Cambodians and paved the way for United Nations-sponsored elections. Since then, Licadho has grown into one of the country's largest nongovernmental organizations (NGOs), with a total of seventeen offices in fifteen provinces and a headquarters in Phnom Penh. It employs 121 full-time staff and has 183 volunteers. Its mandate and activities are wide-ranging, including providing human rights and legal education to civilians and government, police and military officials; monitoring the human rights climate, including the investigation of rights violations; giving medical, financial and other assistance to victims of violations; advising victims how to seek redress from the police, courts or other authorities; advocating on behalf of victims to the relevant authorities; visiting Cambodian prisons to provide medical treatment and arrange legal representation of inmates as needed. Licadho's work has attracted funding from foreign donors, including the Asia Foundation (U.S.) and Norad (Norway), and other international recognition. In 1998 Licadho was jointly awarded, along with fellow Cambodian human rights group ADHOC, the Roger Baldwin Medal of Liberty Award, given by the Lawyers Committee for Human Rights and the American Civil Liberties Union.

At the time of the waste dumping, Licadho's Sihanoukville office was well-known to local officials. Its staff had given training on the law and human rights to local police and other officials, and regularly dealt with court, prison, and other authorities in the course of their work. Its four staff included Kim Sen, coordinator of the office, and Meas Minear, an investigator. Both had worked for Licadho for more than three years, most of that time in Sihanoukville, and both were married with families and homes in the town.

On December 16, 1998, the day that Pich Sovann died, the Licadho staff telephoned a municipality environment official and unsuccessfully tried to find Sovann's family. The next day, they met with another local aid agency to talk about possible medical help for villagers near the dumpsite.[41]

The following day, Friday, December 18, about fifty people, most of them city market vendors, came to Licadho's office. They were angry and worried that the "poisoned rubbish" would kill them and their families or, if not, would frighten off townsfolk and tourists, killing their market businesses. In front of them, Kim Sen telephoned Second Deputy Governor Hing Sarin, who told him to tell the vendors that the municipality was taking action to investigate and resolve the waste issue. Kim Sen, faced with a room full of angry people, said he was not sure if that would satisfy them. According to Kim Sen, Hing Sarin then suggested that, if the people wanted to make their concerns known, they had the right to send a petition to the municipality. Kim Sen agreed to this, and their conversation ended. A short time later, Kim Sen again rang the deputy governor, this time on behalf of two men who claimed to be sick because they had touched the waste. Hing Sarin, in a Human Rights Watch interview in March 1999, confirmed the basic tenor of Kim Sen's version of events but with one key difference - he denied that he had suggested the writing of the petition.[42] Human Rights Watch notes, however, that the sending of petitions to the authorities by disgruntled citizens is a completely legal and common practice in Cambodia.

After the phone call, Kim Sen told the market vendors that Hing Sarin had promised that action was being taken. Kim Sen also explained that they could write a petition if they were still not satisfied, and the vendors supported this idea. The vendors said they wanted the waste removed from Cambodia, so Kim Sen asked his Licadho colleague, Meas Minear, to draft the wording of the petition. Meas Minear wrote a brief petition addressed to the municipality asking that the waste be removed to avoid danger to their lives or businesses. A few people put their thumbprints to the petition in the Licadho office before they decided to take the document away, photocopy it, and collect more thumbprints. Kim Sen told them that if they returned the document on Monday morning, Licadho would send it on their behalf to the municipality office.

Public Anger Mounts

That night, the powerful first deputy governor of Sihanoukville, Khim Bo, went on local television to try to calm residents.[43] Implying that the Sihanoukville authorities had known nothing of the waste importation deal, he said they became suspicious after the material was dumped. An official committee had been formed to handle the matter, and he promised strong action against the importers. Warning people not to go near the dumpsite, he said he was sure the waste was dangerous but was unsure of how dangerous. No deaths had been attributed to the waste, he said. In his television appearance, Khim Bo unintentionally heightened tensions. "People listened to what he said, but they did not understand. They were shocked and panicked," said one official. "They did not believe him; they were angry," said another.[44]

The next day was a Saturday, but Kim Sen and Meas Minear still went to work, with the intention of painting their office. In the morning, they were visited by a smaller group of vendors who, having already collected more than 700 thumbprints, returned the petition. Then another vendor, Khieu Piseth, arrived to say that some market people now wanted to hold a demonstration and wanted Licadho to go to and talk to them. Kim Sen explained that this was a matter for the authorities, not Licadho. He said citizens had the right to demonstrate, but they had to do so according to the law: they had to notify the authorities, explaining when, where and why they wanted to demonstrate. For this, they needed a plan and had to write a letter to the authorities.[45] As an example, Kim Sen produced several old documents relating to a children's rights march, part of a Global March Against Child Labor held throughout the world, in Sihanoukville in February 1998. The documents included a letter of permission from the authorities and a map of the march route. Human Rights Watch notes that Kim Sen's advice was correct and according to the law.[46]

During this conversation, two journalists from Public Opinion, the first newspaper to write about the waste, arrived at Licadho's office. They talked to the vendors and human rights staff, arranged to photocopy the petition, and apparently tape-recorded some of the discussion. One of the journalists took a photograph of Kim Sen, Meas Minear and Khieu Piseth sitting down and talking. (This photograph is now considered key "evidence" that Kim Sen, Meas Minear and Khieu Piseth were responsible for the subsequent violent riots. However, even Public Opinion, which published articles critical of Licadho, acknowledged that Kim Sen only spoke about a lawfully approved, nonviolent demonstration at this meeting.)

Concerned that an unlawful demonstration might break out, Kim Sen telephoned the local district police chief, Prum Sokhan, to ask his advice.[47] The policeman, according to Kim Sen, said he would check with his boss, and that Kim Sen should call him back in half an hour. When Kim Sen rang back, Prum Sokhan said that the demonstration had already started at the house of Khim Bo, the first deputy governor. The police chief asked Kim Sen to go there to try to help resolve the situation. Prum Sokhan partially confirms Kim Sen's account of the two phone calls, with some differences.[48]

Protests: Day 1 (December 19)

While Kim Sen spoke to Prum Sokhan by telephone from Licadho's office, a demonstration was breaking out at the city market. Some 300 to 400 people, carrying banners denouncing government corruption and the waste dumping, marched to First Deputy Governor Khim Bo's house. Kim Sen and Prum Sokhan went there but did not talk to each (the latter was busy talking to other officials). The police chief tried to negotiate with the some of the protesters, asking them if they had permission to demonstrate. "We have no permission, we have no leaders. But if the waste is not removed, we will die," was the angry reply.[49] Soon, the protesters marched off down the road. According to Kim Sen, several of them said they were going to "fight" Licadho; they blamed the human rights group for not doing enough to help them. Kim Sen returned to his office, just before the protesters marched past. He spoke to several protesters, explaining that only the government, not the human rights group, had the power to take action over the toxic waste.[50] At this point, Public Opinion journalists took another photograph showing Kim Sen standing outside his office as demonstrators go past. (The authorities now consider this photo as "evidence" that the demonstrators stopped to take orders from Kim Sen.)

The protest grew in size, up to about 1,000 people. They went to the Customs office, yelling at its staff, and then to Camcontrol (the import inspection agency). Protesters pulled down the Camcontrol sign and smashed the windows with stones. Police and military police on hand were outnumbered and could not calm the crowd. The protesters returned to Customs but began to disperse in the mid-afternoon. During this first day of protests, Kim Sen and another of his Licadho colleagues (not Meas Minear) monitored the protest, following and watching from a distance. At no time did any of the police or military police present allege that Kim Sen was leading or inciting the rally.[51] After the demonstration ended, Kim Sen phoned Licadho's Phnom Penh office to inform them of events.

That night, Deputy Governor Khim Bo again went on local television, along with the local hospital director, Sok Pheng. Khim Bo implied that he supported the public demonstrations because they helped to back up the municipality's request to the Phnom Penh government for action to be taken. "I and the [municipal] authority are very much in favor of the spirit of the protests because it is the concern and responsibility of the government, as well as the municipal authority, to [protect] the livelihood and health of our people," Khim Bo said. He announced that the government Council of Ministers had, the day before, decided to remove the waste from Cambodia and prosecute people involved in its importation. Indicating that this would take some time, he said that the removal required research and technical expertise. In the meantime, anyone who still had any of the waste should return it, and the municipality would strictly cordon off the dumpsite.

Sok Pheng, meanwhile, said that the death of port worker Pich Sovann was not related to the waste. Regarding people who had fallen sick, Sok Pheng said the hospital did not have adequate blood testing facilities but, based on their symptoms, did not believe that any of them had been poisoned.[52] This television broadcast, like Khim Bo's first one the night before, was apparently not well received.[53]

Protests: Day 2 (December 20)

The next morning, the authorities, in a bid to negotiate an end to the protests, called a meeting with six or seven "demonstration leaders." Kim Sen and Meas Minear were clearly not put in that category as they were not invited.[54] Khim Bo and other officials addressed the group. The meeting was brief because Khim Bo had to leave to greet Deputy Prime Minister and Interior Minister Sar Kheng and other senior Phnom Penh officials dispatched to investigate the Sihanoukville waste dumping who arrived that morning. Around the same time, protests broke out again.

The second day's demonstrations began at a garment factory, not at the market, according to police. According to other witnesses, the December 20 demonstrators were largely a different group of people and did not include many of the market vendors who had protested the day before.

It was Sunday, but Kim Sen and Meas Minear went to work, to check if there were any more demonstrations. Going to have a look around town, they found a group of several hundred youths throwing stones at the office of the economic police (responsible for enforcement of economic regulations) near the port. The two Licadho workers later established that the crowd had already done the same thing to the Customs office. Eventually, the crowd worked their way toward the municipality headquarters, where Khim Bo, Minister of Interior and Deputy Prime Minister Sar Kheng and other officials were meeting, and police tried to stop them with a water cannon. At one point, a military police chief asked Kim Sen to try to find a group of protest leaders to meet with Sar Kheng. Kim Sen replied that he was only there to observe and did not know who the leaders were.[55] A few protesters apparently slipped through the security cordon and accosted Sar Kheng, yelling at him,[56] but most of them bypassed the heavily protected municipality headquarters. Instead, they targeted the offices of Kamsab, the state-owned Cambodian shipping and brokerage agency down the road.[57]

The Kamsab offices are housed in a small, beachfront hotel owned by the shipping agency. Here, events turned ugly, as the hotel was virtually demolished by hundreds of protesters. Storming inside, they grabbed beds, televisions, air conditioners, anything they could find, and threw them out the windows. Below, other demonstrators collected the debris and burned it in the street, adding other items, including electricity generators, cars and motorbikes, to the flames. One young man was fatally injured when hit by falling debris. In the face of the full-blown riot, the police were virtually powerless and stood watching, along with Kim Sen and Meas Minear. Kim Sen moved closer to the fracas at one stage, to check whether the fatally wounded man was receiving medical treatment. After more than an hour of rampage at Kamsab, the mob left, heading for governor Khim Bo's house up the road.

Afterward, Kim Sen met one of the Kamsab managers, whom he knew. They talked for a while, along with a group of police and military police. At no point did the manager or any of the police accuse Kim Sen of orchestrating or inciting the vandalism. Indeed, the manager gave Kim Sen a ride into town, and the pair arranged to meet for lunch later.[58]

At Khim Bo's house, as at Kamsab, the situation got out of control. The house was vacant, as the deputy governor was with Interior Minister Sar Kheng at the municipality office, and his wife and children reportedly jumped the fence and ran away when the demonstrators arrived. Outnumbered police attempted to control a crowd of some 500 people gathered in front of the residence's tall fence and locked gates. Surging back and forth, protesters broke through the police line, ran up to the fence, and threw stones at the house windows before being pushed back. This was repeated for at least fifteen minutes, until the protesters finally smashed their way through the gates. Khim Bo's Toyota Landcruiser vehicle was pushed into the street, overturned and set afire. Other people stormed his house, destroying or looting property that reportedly included a large sum of cash in two safes or cabinets.[59] Less than ten people were arrested by police or military police in or near the house.

According to Kim Sen's account, he had just been dropped off in town by the Kamsab manager when a passing friend told him of what was happening at Khim Bo's house. Kim Sen went straight there and saw the governor's vehicle burning. Kim Sen remained there, more than one hundred meters from the house, for about five minutes. As a rumor spread that there were munitions inside the burning vehicle, and that it would explode, people ran away. Kim Sen left the scene, getting a ride from a friend. Meas Minear, his Licadho colleague, separately arrived at the scene with a human rights worker from another organization whom he had met outside Kamsab. He stopped his motorcycle near a petrol station at least 150 meters from Khim Bo's house and watched for about half an hour.[60] During that time, he met another acquaintance, who confirms having seen him there, drinking a bottle of water and watching the riot. Meas Minear, like Kim Sen, decided to leave when people began running away.

The protesters eventually moved on, apparently intending to attack the nearby homes of the hospital chief and the port authority chief. A group of military police blocked the road and fired warning shots over the heads of the protesters, who finally dispersed.[61] The demonstrations, except for a small one at Bettrang commune the next day, were over.

V.ARRESTS IN CONNECTION WITH THE DEMONSTRATION

Instead of just arresting people, why don't they solve the real problem? The real problem is the dumping of the waste.

- Cambodian human rights worker

Licadho Arrests

The next day, Monday December 21, 1998, Kim Sen and Meas Minear were arrested. There is convincing evidence that the arrests had the approval of Sar Kheng, who had been with Khim Bo during the trouble the day before. A government official told Human Rights Watch that Sar Kheng was party to discussions about arresting the Licadho staff, although it was Khim Bo who pushed the hardest for their arrests.[62] As minister of interior and the highest-ranking official present, Sar Kheng would have certainly had the ability to prevent the arrests or at least to insist that they be lawful.

On Monday morning, Kim Sen and three other rights workers went to Bettrang commune, near the dumpsite, to check on reports of demonstrations. (A small number of villagers, hearing of the riots in the city, had protested at the commune office.) The demonstrators had already left, so the rights workers traveled on to neighboring Ream commune to look for them there. Again, they found nothing. Kim Sen and his colleagues stopped at a coffee shop in Ream, where they were sitting when two vehicles of police arrived.[63] About ten armed police surrounded the café, while their commander, Sihanoukville Deputy Police Commissioner Tak Vantha, asked for Kim Sen, who identified himself. Tak Vantha insisted that he get into one of the police vehicles. Kim Sen did so. Tak Vantha then showed Kim Sen's three colleagues a photograph, the one taken by the Public Opinion journalists at Licadho's office two days earlier, which pictured Kim Sen, Meas Minear, and market vendor Khieu Piseth, whom Tak Vantha mistakenly thought was also a Licadho staff member. Kim Sen's colleagues questioned Tak Vantha, who refused to give his name, although his identity was known to one of them. Asked to produce an arrest warrant, Tak Vantha reportedly replied that Kim Sen was being "invited" to the Sihanoukville police headquarters. Asked for a written invitation, he did not provide one. He also refused their request that Kim Sen be allowed to travel in the human rights workers' car, with a police escort, to voluntarily go to the police headquarters.[64] The police drove Kim Sen away at high speed to a police station in Sihanoukville and later to the central police office.

Meas Minear was arrested a short time later at Licadho's office by four policemen who "invited" him to see the police commissioner. When asked, they showed neither an arrest warrant nor any official invitation. They took him in a police car, refusing his offer to travel separately, to police headquarters.

Human Rights Watch is convinced that both Kim Sen and Meas Minear were arbitrarily detained under implicit, if not explicit, threat of violence if they resisted. At no time during their arrests, or interrogation by police and then the local court, were they shown warrants for their arrest.[65] On the day of their arrest, several human rights advocates, including from Human Rights Watch and the United Nations, requested to see, but were never shown, arrest warrants for the pair. In such circumstances, it must be concluded that their arrests were unlawful.[66]

Kim Sen and Meas Minear, separately interviewed by the police, were shown the Public Opinion photograph of them sitting with Khieu Piseth. They both explained the background to that photograph and denied doing anything other than advising people how to lawfully complain to the government. The two, along with Khieu Piseth, who had by that time also been arrested, were taken to Sihanoukville court the same day and questioned by investigating Judge Ke Sakhon, with other human rights workers present. Initially, the judge informed them that they were charged with robbery, wrongful damage of property and participation in an (illegal) demonstration. After listening to their testimony, he announced that he would drop the last charge. Kim Sen and Meas Minear remained charged with robbery and property damage, charges that related to the damage to the hotel and the governor's house but not with participating in the demonstration in which the damage was caused.[67] The two were sent to Sihanoukville prison on the evening of December 21.

Other Arrests

At least seven alleged demonstrators were already at the prison. Authorities said they were arrested in the act of committing crimes during the demonstration at Khim Bo's house the day before.[68] There are reports, backed by medical evidence, that police tortured at least two of these seven. One man later told the court that he was allegedly kicked and beaten unconscious is a bid to get him to confess that he opened a safe in the governor's house.[69] One of those arrested was kept in shackles (a violation of prison regulations) at Sihanoukville prison, allegedly on the instructions of the court prosecutor.[70] An eyewitness also told Human Rights Watch that two other men seen badly bleeding at a police station did not end up in the prison; what happened to them is unknown. There was, in fact, a discrepancy in the number of people arrested and those jailed: the court prosecutor told human rights investigators that nine people were arrested on December 20, but checks at the prison revealed only seven. The authorities later said that the remaining two were released and not charged.

In subsequent days and weeks, four further people were arrested in connection with the demonstrations. Counting Kim Sen, Meas Minear and Khieu Piseth, the total number of people arrested and jailed because of the demonstrations was fourteen.[71]

Court Complaints

Governor Khim Bo, as well as Kamsab and Customs officials, filed complaints to the court over damage to their properties during the riots. In a December 21 statement to the court, Khim Bo alleged that "all acts [of robbery and damage] carried out by the offenders were incited and encouraged by somebody" but did not refer to any evidence. In a subsequent January 6, 1999 complaint, Khim Bo requested "compensation by physical imprisonment" of the offenders. The governor put his losses at U.S.$444,168.67, including damage to his house and loss of property and cash. Court officials told Human Rights Watch that this amount included $230,000 in cash allegedly taken from his house--$80,000 of his own money[72] and $150,000 belonging to his party, the ruling Cambodian People's Party (CPP). Kamsab estimated its losses at about $220,000, though one official told Human Rights Watch that the true cost of damage would not be known until hotel repairs were done.

Imprisonment and Pre-trial Release

Kim Sen and Meas Minear were arrested, according to Prosecutor Mourn Mith, because people arrested during the riots had named them as the demonstrations' masterminds. None of those arrested said any such thing in subsequent interviews with their lawyers and human rights staff, and none of them are now believed to be witnesses against the Licadho pair.

Kim Sen and Meas Minear were kept in prison for one month, after the Sihanoukville court rejected their lawyers' application for pre-trial release.[73] The court stated that the two, if released, could influence witnesses and interfere with the investigation. Ironically, they were held in prison with the very demonstrators who, according to the prosecutor's earlier statement, had allegedly incriminated them.

Defense lawyers successfully appealed the Sihanoukville court's ruling to the Court of Appeal in Phnom Penh, which on January 20 granted pre-trial release to Kim Sen, Meas Minear and Khieu Piseth. In verbal comments before releasing his written ruling, the Court of Appeals judge said that the arrests and detention were improper, particularly because the Sihanoukville court had not requested to see the evidence against the three men before the arrests were made.[74]

Most of the alleged demonstrators were later also released pending trial, after spending up to six weeks in jail. However, two alleged demonstrators remained in prison as of late April. Those released were not cleared, and may still face trial. Under Cambodian law, the court has up to six months from date of arrest to decide whether to hold a trial or dismiss the charges. Therefore, a decision on the case of Kim Sen, Meas Minear and the others could be delayed until June 1999.

Procedural Irregularities

In the wake of complaints from human rights groups over the Licadho arrests, the Ministry of Justice in Phnom Penh dispatched officials to Sihanoukville to investigate. Following this investigation, the investigating officials told Human Rights Watch that they had informed the minister of justice that the Sihanoukville court had allegedly issued arrest warrants after Kim Sen and Meas Minear were arrested, backdating the warrants on the court files; they also told the minister that there was insufficient evidence for the pair to have been arrested and charged.[75] It appears that the ministry's investigation was more of an informal, rather than formal, one; its conclusions were not made public, and no further action was taken.

According to experienced human rights lawyers, numerous procedural violations were committed in the case of Kim Sen and Meas Minear (and Khieu Piseth). They included:

•No arrest warrants were produced at time of arrest.

•The Sihanoukville court, as found by the Court of Appeal, did not review the evidence against the accused before they were arrested.

•The Sihanoukville's court's negative decision over pre-trial release was not delivered within five days of the defense lawyers' application, a time period stipulated by law.

•The defendants' lawyers were denied, until January 15, full access to the court and police case files.

•The Court of Appeal, which is bound by law to rule on all appeals over pre-trial release within fifteen days of application, delivered its ruling on Kim Sen, Meas Minear and Khieu Piseth five days late, apparently because the Sihanoukville court was late in transferring files to the Court of Appeal.[76]

Judicial Independence

There is some evidence that the Sihanoukville court may not have acted independently, and its role in this case should ideally be examined by the Supreme Council of the Magistracy (if that institution was fully functional). In particular, there is some reason to believe that the court may have allowed itself to be improperly influenced by Khim Bo, a powerful official who is also a victim of the riots. Khim Bo, as both the current first deputy governor and the former governor of Sihanoukville during the former one-party State of Cambodia, is one of the highest ranking members of the ruling party in Sihanoukville and is thus in a position to influence the local police and judiciary.

The role of Khim Bo and Sar Kheng in ordering the arrests of Kim Sen and Meas Minear has already been mentioned. Cambodian law contains specific procedures for prosecutors and judges to determine whether arrest warrants and detention orders should be issued; an order from a provincial governor or a minister of interior is no lawful substitute for these procedures.

In addition, Khim Bo, by all accounts, was understandably furious at the trashing of his residence and clearly made his anger known. As Prosecutor Mourn Mith told Human Rights Watch: "He even got angry with me. He telephoned me four times, to ask me to push the case more quickly to court."[77]

Human Rights Watch could not confirm that Khim Bo had a direct role in the appointment of officials currently serving in the Sihanoukville court, but virtually all of Cambodia's current judges and prosecutors were appointed under the State of Cambodia and were required to be members of the ruling party, now called the CPP.[78] Under State of Cambodia administrative practices, provincial governors were responsible for appointing local prosecutors and judges, and Khim Bo was governor of Sihanoukville. Khim Bo thus may well have had influence over the Sihanoukville judges.

Phnom Penh officials interviewed by Human Rights Watch had no doubt of Khim Bo's influence on the Sihanoukville judge and prosecutor. "It is not so much pressure, as friendship - they are friends and want to help each other," said one senior Ministry of Justice official. "They never follow the law - they follow their boss," said another, speaking about the Sihanoukville court. For their part, the Sihanoukville judge and prosecutor have publicly denied any interference in the handling of the Kim Sen and Meas Minear case. Judge Ke Sakhon noted to Human Rights Watch that the Ministry of Justice cannot legally interfere in the Sihanoukville court's investigations. Under Cambodia's Constitution, only the Supreme Council of Magistracy, which is not yet functioning properly, has responsibility for investigating complaints about the conduct of judges or prosecutors.

However, one senior court source made a telling comment about who lays down the law in Sihanoukville: "Please, be calm, do not criticize," the source told Human Rights Watch. "Now, when the victims [of the demonstrations] are calming down, please don't make them angry again. If the victims are angry again, Kim Sen and Meas Minear will go back to prison." It was clear that by "victims" he meant Khim Bo.

In a development that may reduce the possibility of undue influence on the Sihanoukville court in the future, Khim Bo was transferred from the province in a reshuffle of governorships throughout Cambodia in early 1999.

The Case against Kim Sen and Meas Minear

In the weeks and months after the arrests, court officials have referred to the following evidence against the Licadho staff:

•Several photographs taken by Public Opinion, including one showing the two Licadho staff and Khieu Piseth at the Licadho office; another showing Kim Sen standing outside his office while marchers go past; and a third one purporting to show Kim Sen (who cannot be identified clearly) in a large group of demonstrators.

•A purported tape recording made by the Public Opinion journalists of the conversation between the Licadho staff, Khieu Piseth and others at the above-mentioned meeting. (It should be noted that Prosecutor Mourn Mith acknowledged to Human Rights Watch in an interview that Kim Sen spoke only of a nonviolent demonstration in this meeting.)

•The petition to the municipality (written by Meas Minear at Kim Sen's request) signed by more than 700 people.

•A map prepared by Licadho showing the route of the Global March against Child Labor in Sihanoukville. The map is clearly marked with the date of the march, February 5, 1998.

•Television footage filmed during the demonstrations. It is unclear what these tapes (not provided to defense lawyers) show; the prosecutor told Human Rights Watch that he himself had not watched them.[79]

•A purported tape-recording of "instructions" given by Kim Sen and/or Meas Minear, over their ICOM portable radios, to demonstrators during the riots.[80]

•A number of witness statements alleging that they saw or heard Kim Sen and/or Meas Minear actively participating in the demonstrations, damaging property, or giving instructions to protesters.

The witness statements appear to be the only evidence that Kim Sen and Meas Minear specifically directed or participated in the demonstrations, thereby committing or ordering robbery and property damage. But some of those statements, provided to defense lawyers, appear to have been written by policemen or police informants; some are in the form of "reports" which are not addressed to anyone and signed just by name, with no other identification.

Moreover, in a March 15 interview with Human Rights Watch, Sihanoukville Judge Ke Sakhon conceded that "the investigation has so far not found evidence of these two offenses [robbery and property damage]" in Kim Sen and Meas Minear's case. He said that the charges might be changed against them. The judge also said that, when the prosecutor had first sent him the court dossier on the case, he had sent it back to the prosecutor because of lack of evidence. The prosecutor had since returned the file to the judge, who was apparently still unconvinced of the evidence, as he told Human Rights Watch that "more evidence may be found in the future." The prosecutor also made it clear that he was not yet convinced that Kim Sen and Meas Minear directly incited the demonstrations, telling Human Rights Watch: "If people gave orders to destroy cars, destroy houses, then they will go to trial. If Minear and Kim Sen did not give orders like that, they will not go to trial." However, both the judge and prosecutor made it plain that they did not believe Kim Sen and Meas Minear's explanations of their actions, and both said they were seeking witnesses to, in the judge's words, "put weight on them [the Licadho pair]."

Human Rights Watch believes that the actions of Kim Sen, before and during the demonstrations, as corroborated by the officials or witnesses involved, are particularly telling: when first approached by disgruntled vendors, one of the first things he did was to call a senior local official, the second deputy governor. When meeting with the market vendors at his office, he clearly had nothing to hide; he freely permitted journalists to be present, to take photographs and listen to the conversation. One of the first things he did, upon hearing of the prospect of demonstrations, was to telephone the district police chief. After the destruction of the Kamsab hotel, Kim Sen met and talked to one of the hotel's managers, who had witnessed the protesters' rampage. The manager, far from blaming Kim Sen, offered him a ride and later had lunch with him. The prosecutor, asked about Kim Sen's telephone calls to police chief Prum Sokhan, told Human Rights Watch that he did not know about this (which is curious given that Prum Sokhan referred to the calls in his statement to the court).[81]

Finally, there is no evidence that at any time during the demonstrations did any police of other officials confront the Licadho staff or accuse them of leading or inciting the protesters. Indeed, a police report to the court dated December 28, seven days after Kim Sen and Meas Minear were arrested and jailed, did not include the Licadho pair in a list of names of the alleged leaders of the demonstrations.[82]

The Role of Public Opinion Newspaper

The key witnesses and evidence, according to Prosecutor Mourn Mith, are the two journalists from Sathearanak Mati (Public Opinion) and the photographs of Kim Sen and Meas Minear that they took.

In Cambodia's politicized fourth estate, Public Opinion is firmly in the pro-CPP camp. Founded in 1993 under the name Sakal (Universal), the newspaper has always been staunchly anti-royalist and therefore opposed to the Funcinpec party, which is headed by the king's son, Prince Norodom Ranariddh. Sakal created headlines in May 1994 when it was raided by Funcinpec-aligned police, who confiscated an entire print run, after it published photographs and articles implying that King Norodom Sihanouk supported the Khmer Rouge. The police raid drew heavy condemnation from human rights workers, including from the United Nations. Two months later, it was one of several newspapers threatened with a lawsuit by the minister of information for allegedly jeopardizing "social order and national security" in their coverage of an attempted coup d'etat.[83]

By 1997, the newspaper had taken the name Public Opinion and continued to publish attacks against the king, Prince Ranariddh, and Funcinpec. In the election year of 1998, the opposition party leader Sam Rainsy also became a favorite target in the newspaper's pages. Public Opinion carried advertisements for the CPP in the run-up to the elections and published stories exhorting readers to vote for the party. It accused Funcinpec of plotting terrorism during the elections.[84] After the elections, it appeared to have financial or other operational difficulties, publishing less frequently, with as long as four or five weeks passing between editions. Later in 1998, shortly before the waste dumping case, it resumed publishing more often, two or three times a week.

Cambodia's large, unruly press has long been criticized for being unprofessional and politically partisan. With very few exceptions, newspapers on all sides of the political spectrum are characterized less by news than by opinion, satire, outright vitriol and propaganda, and often gory photos. A handful of papers are well-entrenched and well-known, and attract most of the newspaper advertising market. The majority of them, including Public Opinion, are not generally known and carry only minimal advertising. Most newspapers are widely believed to depend on the financial patronage of particular politicians or businesspeople, and their reporting usually reflects such allegiances. A Human Rights Watch review of headlines published by Public Opinion[85] shows that the newspaper has consistently been pro-CPP. Especially around the time of the waste dumping, it devoted prominent coverage to Sar Kheng, the minister of interior. By November 1998, just before the waste importation, it was regularly lashing out at senior Funcinpec official You Hockry, who is Sar Kheng's counterpart as minister of interior.[86] Public Opinion's first story about the waste importation, in early December, was carried in the same edition as a front-page headline which described Sar Kheng as "the pillar of the ministry of interior." Its next edition carried a further attack on Funcinpec's You Hockry, whom it described as a "rotten fish." The following edition gave prominent coverage to a speech by Sar Kheng calling for the rule of law in Cambodia, complete with front-page photo of Sar Kheng giving donations to poor villagers. This trend has continued consistently in the newspaper.[87]

Public Opinion's director and editor, Lach Samroang, in a March 29, 1999 interview with Human Rights Watch, said the paper's editorial policy was to oppose corruption, support Cambodia's territorial integrity against foreign aggression, and act as a conduit between the common people and the government.

Lach Samroang declined to say who initially tipped off the Phnom Penh-based newspaper to the toxic waste story but said that both he and his chief of editors, Chhin Sovann, went to Sihanoukville to investigate. It was they who visited the Licadho office and took the photographs that have now been given to the Sihanoukville court. Lach Samroang declined to talk in any detail about Licadho and the demonstrations but referred to the same evidence cited by the court: the photos, petition and purported tape-recording of Kim Sen talking to the market vendors.[88]

Public Opinion's version of events involving the Licadho staff is contained in two articles, in its December 22-23 and December 24-25, 1998 editions. The first story referred to Licadho staff having written the petition and encouraged people to hold a demonstration. At one point, the story alleges that Kim Sen "hid" in the crowd and yelled insults at the authorities in the first day of protests. The second story alleges that the petition, initiated by Licadho, was thumbprinted in a "secret" way. (The article also notes that Public Opinion went to Licadho, spoke to the staff and the vendors about the petition, and took photographs.) The second story quotes Kim Sen as saying that if the municipality did not respond to the petition, he would lead a public demonstration. The newspaper notes that Kim Sen spoke only of a nonviolent demonstration and that "Public Opinion appreciated the good idea" of the Licadho coordinator. The newspaper further states that Licadho had spoken to police and municipal officials including First Deputy Governor Khim Bo.[89]

There is a discrepancy between the two Public Opinion stories over the pulling down of the Camcontrol sign on the first day of the protests. The first story says that the demonstrators, when talking to the police, said that they had no representatives or leaders and that they wanted the sign pulled down. The police, because of the tense situation, let them take the sign down. The second story, however, accuses Kim Sen of inciting the demonstrators to remove the sign.

The second story includes more references to Kim Sen and Meas Minear participating and giving orders in the demonstrations. For example, according to the second article, Kim Sen was at one point seen "wearing a blue Licadho t-shirt, sandals, cap and eating bread, walking in front of the demonstrators." It alleges that Kim Sen, Meas Minear, and "other colleagues" ordered the burning and storming of Khim Bo's house on the second day of the protests. The newspaper clarifies this by saying that Meas Minear directed the people to push into Khim Bo's house, while Kim Sen "was standing near" a man who was encouraging the demonstrators through a loudhailer. The second story also refers to Kim Sen's alleged political affiliations, describing him as a member of the opposition Sam Rainsy Party.

Prosecutor Mourn Mith told Human Rights Watch that the key evidence was the two journalists' reports of the meeting at the Licadho office and the petition (he did not refer to their allegations of Licadho actively participating in the demonstrations). The prosecutor acknowledged that Kim Sen had only talked about a the possibility of a peaceful demonstration but blamed the Licadho man for not seeking permission for a demonstration. "If Sam Rainsy wants to have a demonstration, he has to apply to the governor. If Kim Sen wants to have a demonstration, he has to apply to the governor," the prosecutor said.[90]

As for the rest of Cambodia's press, the toxic waste and the demonstrations provoked a flurry of articles, most of them concentrating on the issues of government corruption and the importation of the waste. "Does Hun Sen want to jail nine demonstrators' representatives to substitute for the people who imported the poisonous wastes?" inquired one anti-government newspaper's headline.[91]

VI.TOXIC WASTE: THE RESPONSE

I think it is heavier [more serious] than the bombardment that the United States fired into Iraq in the last few days¼ We may be a poor country, but we will not tolerate any dumping of toxic or industrial waste on our soil, no matter how lucrative the business may be.

- Prime Minister Hun Sen, in his initial response to the scandal

I think there must be a trial. To do this [import the waste], many people must have been involved. There must be a penalty, not just for this case, but to warn people not to allow this to happen again.

-Sihanoukville official

Investigating the Importers

In addition to the prosecution of the alleged demonstrators, the Sihanoukville court has been holding a parallel investigation into the waste importation which provoked the riots. The second investigation has been conducted by Chief Judge Huon Mony.

The only person imprisoned because of the waste is Sam Moeun, head of the Muth Vuthy import-export company which handled the shipment on the Cambodia side. He was arrested in Phnom Penh on December 18, 1998, the day before the protests began, and sent to Sihanoukville. After a complaint by the Ministry of Environment, he was charged under Cambodia's environment law. Like at least one of the demonstrators, he was initially kept in shackles at Sihanoukville prison. He was refused pre-trial release by both the Sihanoukville court and the Court of Appeal in Phnom Penh.

According to information given to the court, Sam Moeun had been responsible for dealing with Customs, Camcontrol and other official entities, but two Taiwanese men (presumably from Formosa's Taiwan contractor, Jade Fortune International Co.) were also in Cambodia to oversee the shipment. Sam Moeun told the court that the two men, who allegedly told him that the waste was "stone," were still in Cambodia when news broke that it was possibly toxic. He maintained that on December 16 he had unsuccessfully tried to get police and court officials in Phnom Penh, where the two men were at the time, to apprehend them.[92] The men are believed to have fled the country.

Ros Teat, the military commander who said that he sold the dumpsite land to a Taiwanese man without knowing what it was to be used for, has been questioned but not charged by the court.

Out of the one hundred officials whom the government reportedly suspended temporarily on suspicion of involvement in authorizing the importation, a total of nine were subsequently named as targets of the Sihanoukville court's investigation. More than a month after the waste arrived in Cambodia, the court questioned national Customs Director In Saroeun, who had authorized the importation, and several other officials. In February 1999, the court file preliminary charges against three of these officials: In Saroeun, Lonh Vannak of the Customs pricing department, and senior Camcontrol official Peng Chheng. In contrast to the treatment of Licadho's Kim Sen and Meas Minear, the three accused officials were brought to the court, with their lawyers, eight days after arrests warrants were issued for them, and were immediately granted pre-trial release.[93]

In April 1999, Chief Judge Huon Mony said he had completed his investigation into the waste importation and that a total of seven people would be charged: importer Sam Moeun; the two Taiwanese men, identified as Kao Chia Song and a Mr Chang, and a translator who worked for them named Pang Phoeung; and the three officials In Saroeun, Lonh Vannak and Peng Chheng. All would be tried under Cambodia's environment law, facing up to five years imprisonment and/or substantial fines if convicted of damaging the environment, according to the judge. All seven accused would also be charged with either falsifying documents or being accessories to the falsifying of the documents, the judge said. He did not elaborate on the reason for these charges, which also carry penalties of up to five years' imprisonment. Regarding the Taiwanese men and their translator, the judge said their whereabouts were not known but that they would be tried in absentia if they did not appear in court.[94]

Some sources suggest that the court does not want to anger senior government figures by moving too quickly or too widely in its investigation. One Justice Ministry official told Human Rights Watch that he was personally told by one of the court's judges that it was "up to the government to decide" who should be charged. In fact, that is exactly true. Under Article 51 of Cambodia's Common Statute on Civil Servants, courts are required to secure government approval before questioning or prosecuting any civil servant.[95] The court has sought (and received) permission from several government ministries to investigate their staff over the importation.

Privately, several officials say the importation almost certainly involved bribery, and the deal likely went higher than the three officials who were arrested, but that there has been plenty of time to destroy any incriminating documents. "There is no proof, but it is true," insisted one high-ranking national official. "Whether it was three million dollars, like Hun Sen stated, I don't know, but I am sure that there was bribery."[96] Opposition political leaders have alleged that the three officials charged are scapegoats for decisions made at higher levels.

The court investigation aside, the government itself has not issued any public accounting of who authorized the waste importation, and how and why. The senior officials who had originally demanded thorough investigations and pledged that government heads would roll have since fallen quiet. Prime Minister Hun Sen, after his initial statements about the waste dumping, has barely uttered a public word about the matter since.

Meanwhile, two National Assembly committees, one responsible for the environment and the other for finance, have begun investigations into the waste importation. It is unclear whether the investigations will be conducted publicly. Such investigations are rare in Cambodia; some parliamentarians have previously complained of a lack of government accountability and cooperation with the National Assembly.

Environmental Regulations

Senior government officials have said that toxic waste imports are prohibited in Cambodia, but the nation's environmental laws and regulations, at the time of the Taiwanese case, did not specifically define or forbid toxic waste. Some lawyers have argued that this loophole raises serious doubts about whether anyone involved in the waste importation can be fairly convicted of endangering the environment. All the seven accused have been charged under a provision of the 1996 environment law which contains penalties for violations of the law which "cause danger to human bodies or lives, to private property, to public property, to the environment, or to natural resources."

In the absence of a statutory ban on hazardous waste, the issue of what "violation" has been committed in this case is a matter of contention. The environment law calls for separate regulations to be passed on land, water and air pollution, and on hazardous substances. One such sub-decree, on water pollution, was passed, in March 1999. In late April 1999, the government approved a second sub-decree, on solid waste control, which includes explicit bans on the importation of both toxic and non-toxic industrial waste to Cambodia. The two sub-decrees were prepared by the Ministry of Environment, which is also drafting other regulations relating to pollution.

The Waste: Analysis and Preliminary Clean-up

At the time of the demonstrations, no one knew what was in the waste or how dangerous it was. On December 22, a day after Kim Sen and Meas Minear's arrests, army experts from Thailand, armed with a geiger counter, visited the site and established once and for all that the waste was not radioactive. They took samples of it away for scientific analysis.

The next day, the government moved to make a preliminary clean-up of the site; several hundred soldiers and port workers began packing and sealing the waste into old steel drums and shipping containers at the dumpsite. The soldiers were provided with protective clothing but, in the intense heat, many did not use it. Some of them soon also complained of sickness. Meanwhile, the authorities began collecting the plastic sheets scavenged from the waste by local residents.

Formosa Plastics of Taiwan, which had by now been identified as the producer of the waste, did not respond to initial requests by Cambodia's Ministry of Environment for information on the waste contents.[97] In Taiwan, Formosa officials insisted that the shipment was "safe, legal and non-toxic"; one spokesman said that there was "no way" the company would take the waste back.[98] Meanwhile, the Cambodia government had decided, without seeing any scientific analysis of its contents that the waste should be returned to sender.

Initially, communication between the Cambodian and Taiwanese governments was poor. Cambodia does not recognize Taiwan, and relations between the two nations have been stormy: Hun Sen, soon after his July 1997 military coup against his then co-Prime Minister Prince Norodom Ranariddh, evicted the Taiwanese representative office in Phnom Penh in 1997, accusing Taiwan of supporting Ranariddh. After the Sihanoukville dumping, Taiwan's Foreign Ministry accused Phnom Penh of making "irrational" and "groundless" statements about the health dangers of the waste. A few days later, Taiwan complained that Cambodia was trying to deal with Beijing, which claims sovereignty over Taiwan, over the issue.[99] Taiwan's Environmental Protection Administration (EPA) later secured Phnom Penh approval to visit Cambodia to inspect the dumpsite.

Initial samples of the waste had been sent to Hong Kong, Thailand, Singapore, Taiwan and Japan. The testing focused on mercury and other heavy metals, which were presumed, because Formosa was a major PVC manufacturer, to be the most likely toxins present. Japan's National Institute for Minamata Disease, which specializes in the study of mercury poisoning, was contracted by the World Health Organization's Cambodian office to assess the Sihanoukville case.

All the tests identified varying, but extremely high, levels of mercury in the waste. The samples were tested to show the total weight content of mercury and other metals in them (measured by parts-per-million, or ppm, which is the same as milligrams per kilogram). Judging by color and composition, the waste was divided into several different types of material. The blackest pieces were found to be the most toxic, with recorded mercury levels of up to 675ppm (in the Singapore tests), 3,790ppm (Thailand), 3,984ppm (Japan) and as high as 10,971ppm (Hong Kong).[100] The mercury was believed to be inorganic, which is insoluble in water but poisonous by ingestion or inhalation, although traces of methyl mercury, the most toxic form of organic mercury, were found in one sample taken by the Minamata institute.

Samples were also tested to determine how much mercury or other metals could leach out of the solidified waste, a test known as toxicity characteristic leaching procedure (tclp). These tests are considered more important by environmental authorities, because they show how much of the toxins could leach into soil and groundwater. An analysis of samples by Taiwan's Environmental Protection Administration (EPA) showed a tclp mercury content of 0.284ppm, exceeding the EPA's 0.2 limit which defines hazardous waste. On the basis of this, the EPA concluded that Formosa had unlawfully exported hazardous waste and ordered the company to begin preparations to remove the waste from Cambodia.[101] Another test, done in Hong Kong, showed a mercury tclp level of .80ppm, four times the Taiwan maximum limit.

Initial tests conducted on water samples taken from wells near the dumpsite indicated that they had not been contaminated with leached mercury from the waste, apparently because there had been too little rainfall to cause much seepage. "Dry weather at the present in Cambodia may be a redeeming feature in a tragic affair," noted a report by Japan's Minamata institute.[102] However, one well close to the dumpsite was later ordered closed after subsequent tests indicated an elevated level of mercury in sediment, rather than water, taken from the well.[103]

Other metals identified in various waste samples were lead, iron, chromium, manganese, nickel, lithium, zinc and copper. Most were within natural soil levels, though some samples reported higher amounts of zinc, chromium and lead. There was no immediate testing for other possible toxic compounds.

Mercury

Mercury, a silvery toxic metal that is liquid at room temperature, is perhaps best known as the liquid in thermometers. Humans absorb mercury through the skin or through contaminated food or water, or by inhaling its vapors; the most common form is through eating fish, which readily accumulate mercury. Chronic, usually long-term mercury poisoning causes skin disorders, kidney damage, hemorrhaging and attacks the brain and central nervous system. The old expression "mad as a hatter" refers to people who had prolonged mercury exposure in their job making felt hats. In more recent times, severe mercury poisoning is known as "Minamata disease," named after the Japanese seaside city of Minamata, where the petrochemical firm Chisso Corporation discharged thousands of tons of organic mercury into the bay for decades from 1932. Local residents, who relied heavily on seafood for their diet, were gradually poisoned after eating contaminated fish. Some 3,000 people (about half are now dead) are officially recognized as Minamata disease victims, although some experts put the real toll as high as 20,000 people.[104] The sufferers include second-generation victims born with physical or mental disabilities because their parents ate poisoned fish.

Sihanoukville Deaths and Sickness

The death of Pich Sovann, the port worker who died within hours of hospitalization on December 16, was followed by that of a young man in Bettrang commune on December 19. The latter had handled and slept on plastic sheeting looted from the waste. Later, after the demonstrations had occurred, several other deaths of people who had been in contact with the waste were reported in Bettrang.

Autopsies are rarely conducted in Cambodia, and the country does not have the technical equipment or expertise to identify toxins in blood or other body samples. The health system is generally poor, and misdiagnosis is common. According to a review of Sihanoukville hospital records by the international medical agency Médecins Sans Frontières (MSF), Pich Sovann was diagnosed with appendicitis and pancreatitis. From the symptoms given in the hospital records, MSF concluded that it was impossible to establish the exact cause of death. In regard to the young villager who later died, MSF concluded that his symptoms before death did not match the possible effects of exposure to the waste. It made a similar conclusion with regard to several other deaths, (finding, for example, that the deceased were old or had longstanding health problems).[105]

In a December 25-26, 1998 fact-finding mission, Japan's Minamata institute took blood, hair and urine samples from nine port workers and five soldiers, the latter involved in the initial clean-up of the waste into metal drums, who complained of sickness. It took no samples from nearby villagers. After analysis in Japan, the institute concluded that mercury levels in the body samples were within the "normal" range, although urine samples (considered one of the best indicators of mercury poisoning) were slighter higher than normal in some of the subjects. The institute noted that it could not be definitive because the body samples were not taken at the time of exposure to the waste or when the claimed sickness was at its worst. However, it concluded that the people it sampled were unlikely to be suffering from mercury poisoning.

The medical group MSF, meanwhile, concluded, after an exploratory mission to Sihanoukville January 10 to 13, 1999, "it is very likely that a health risk is associated with this waste." However, it noted that the symptoms cited by port workers and villagers were largely non-specific, such as headaches, and therefore could not necessarily be attributed to mercury. Other toxins were "possible and likely."

In February, MSF carried out a second investigation, which included the interviewing, examination and (where necessary) treatment of 1,300 people exposed to the waste. Based on the presence of two to three clearly defined symptoms, MSF tried to quantify a "probable" connection between the waste and the sicknesses reportedly suffered. Of those whom it interviewed, it concluded that there was a probable connection in the cases of 48 percent of the port workers; 50 percent of the villagers at the small mill village near the dumpsite; 33 percent of the soldiers who initially packed the waste into metal drums; and 35 percent of the Bettrang villagers. MSF noted that, by the time the survey was carried out, the health of nearly all of those interviewed had improved considerably. This was consistent with short-term exposure to toxins and also consistent with the half-life of mercury in the body (sixty days). It found no evidence that long-term harm to the population should be expected, providing that the waste was removed and the dumpsite properly decontaminated.

An independent toxicologist commissioned by a local legal aid group concluded that it was possible that the health effects were the result not solely of mercury but of a mixture of toxins. The toxicologist recommended more comprehensive testing of the waste for other organic substances and contaminants such as dioxins and furans.[106] At time of writing of this report, the results of World Health Organization-commissioned tests for dioxins in samples of the waste had been received but not made public.

Reports of Sea Dumping

There is a sizeable discrepancy between the number of bags of waste listed on the cargo ship's manifesto and those counted on arrival in Sihanoukville. Some 200 bags, roughly 10 percent of the shipment, are unaccounted for, according to environment and court officials.[107] There have been newspaper reports that some of the bags may have been dumped in the sea in a bid to reduce the cargo, and therefore the import tax paid on it, while negotiations between the importer and local officials were going on before the ship was unloaded.[108] However, skeptics maintain that the bags, weighing at least one ton apiece, would have been difficult to dump from the ship; they also note that in the end import tax was paid on the entire consignment, as listed on the shipment's manifesto. The minister of environment disputes the suggestion of sea dumping, maintaining that the discrepancy is probably due to paperwork or weighing errors.[109]

Economic Effects of Importation

Many people temporarily fled Sihanoukville city in the initial panic. In Bettrang commune, most people stayed. They had no money and nowhere to go. Most continued to work in their rice fields, out of necessity, even if they were sick. At the small mill village next to dumpsite, the population of around one hundred people was forcibly evacuated. They lost their livelihood, having depended on the sawmills at the village. Most of them were itinerants, and many have now left Sihanoukville to try to forge a living elsewhere. Tourism, one of Sihanoukville's major industries, also took a heavy blow. Hotels reported that tourist numbers were two to three times lower than normal over the Christmas period. Because of the exodus from Sihanoukville and the lack of tourists, local markets suffered reduced business, though this is difficult to quantify. Fears that some of the toxic waste may have been dumped in the sea prompted a slump in demand (and prices) for fish and shrimp. Some fishers reported a 30 to 40 percent drop in their incomes.[110]

The family of deceased port worker Pich Sovann (who, married with three young children, was the breadwinner for them) has received some money (about U.S.$400) from the port authorities for funeral and other costs. Other port workers who were off work for as long as one month because of sickness continued to receive their salaries and some money for medical expenses, although some workers say the sums are inadequate. Port workers have reportedly been told by their bosses not to say that the waste poisoned them.[111]

Compensation Issues

Formosa Plastics, in its contacts with the Cambodian government, has consistently refused to discuss the issue of compensation for the government or the people exposed to the waste. In a February 25, 1999 agreement struck in Phnom Penh between the government and Formosa, which focused on the removal of the waste from Cambodia, the Taiwan company accepted partial responsibility for medical treatment of affected persons. Formosa agreed to be responsible, for a period of one year, for providing medical care to anyone who was diagnosed with illness caused by the waste. This diagnosis has to be confirmed by two physicians, one appointed by Formosa and one by the Cambodian government, or (in the event of dispute) by a third physician approved by both parties. While Formosa bears responsibility "to do medical treatment", the agreement does not state where, how and by whom.

A local NGO, Legal Aid of Cambodia, whose staff observed the negotiations that produced the agreement, has strongly criticized the final document. It has argued that it is not acceptable for victims to be able to get medical care only from "the party that is responsible for poisoning them" and that the wording of the medical provisions is far too vague. It has also criticized the lack of negotiation over compensation for loss of income due to sickness and for "any and all harms" resulting from the toxic waste.[112] Government officials and some other organizations, meanwhile, have pointed out the legal difficulties (given inconclusive medical evidence) in proving direct health consequences to individual Cambodians caused by the waste. Similarly, there are difficulties in quantifying the precise economic losses to individuals because of the waste.

Waste Removal

Four months after the waste arrived in Cambodia, local residents got what they wanted: its removal.

The process began in late December 1998 when Taiwan's Environmental Protection Administration ordered Formosa to retrieve the waste. It was not until the following February that a Formosa delegation sent to Cambodia concluded an agreement with the government to do so. Under the agreement, an American engineering and environmental company, Camp Dresser and McKee Inc., was appointed as a "third party expert" to oversee the removal and decontamination of the dumpsite. As such, the firm was working for both Formosa and the Cambodian government but paid by Formosa. Separately, Formosa contracted an American hazardous waste landfill company, Safety-Kleen Services, Inc., to take the waste. Under the guidance of the two U.S. firms and some twenty Formosa staff, Cambodian soldiers were used to empty the waste out from the old drums, not suitable for transport, into new ones. More than 4,000 tons of topsoil was also put into drums, as part of the dumpsite clean-up.

Completed ahead of schedule in late March, the end of the repackaging was marked by a ceremony, complete with a hired pop band, Cambodian dignitaries and Formosa representatives. Minister of Interior Sar Kheng told the assembled crowd of villagers, "On behalf of the government, I apologize to the people here that government officials colluded to be corrupt and did not think about the nation's interests or people's lives when they took this waste in here."[113] Formosa Plastics Corporation President C.T. Lee, in a statement read at the ceremony, continued to argue that the waste had never been dangerous. The whole incident had been caused by a misunderstanding by "common people and the media", and he also blamed the Taiwanese and Cambodian sub-contractors who had not disposed of the waste properly. This had made "the people of Cambodia feel greatly unsafe." For this, C.T. Lee offered his sincerest apologies to Prime Minister Hun Sen and the people of Cambodia.[114]

There was one more surprise at the last minute. As the waste was about to be shipped out of Sihanoukville, the plan to take it to the United States for landfill dumping was abandoned. The same issue that had been problematic in Cambodia, identifying and measuring all toxins in the waste, proved similarly difficult in the U.S. In the face of protests by environmental activists, and after reviewing various test results on waste samples, the U.S. Environmental Protection Administration (EPA) suspended its initial approval for the importation. The following day, Safety-Kleen, the company which had intended to dump the waste in its California landfill, withdrew its application for EPA approval to do so. In a March 31 statement, Safety-Kleen noted that its plan to dispose of the waste in California had been based on "anticipated characteristics and content of the waste materials as provided by the generator [Formosa]." However, after Safety-Kleen had arranged independent sampling and testing of the waste, it had been decided that: "Based on Safety-Kleen's independent professional judgment, it has been determined that this material is more complex than originally believed and is potentially non-conforming" to U.S. EPA standards for landfill disposal.[115] The results of the tests alluded to by Safety-Kleen have not been made public, at time of writing.

Formosa decided to ship the waste back to Taiwan, but it was not expected to stay there for long. "We have no intention to keep the stuff here," Formosa's C.T. Lee reportedly told a Taiwanese press conference, adding that the company still wanted to send it to a developed country such as the U.S.[116] At time of writing, the final destination of the waste, like its precise content, was unknown.

VII.CONCLUSIONS

The toxic waste shipment and its repercussions raise many human rights issues, relating to health, the environment, rule of law, corruption, governance and accountability, and the rights of human rights defenders. The case highlights numerous issues in Cambodia, including lack of judicial independence and professionalism; failure to adhere to basic judicial procedures; inequitable application of the law, with rampant impunity for government officials; a poor human rights situation, and official intolerance for those who work to improve it.

People in Sihanoukville knew that what had happened in the Formosa case was unacceptable. Their anger and alarm were legitimate, although the violence that ensued was not. Licadho's presence during the demonstrations was entirely appropriate. Indeed, it was common practice for human rights defenders to be present at demonstrations, since the latter had so often led to violence and arrests in the past.[117] There is no reason to believe that Kim Sen and Meas Minear acted unlawfully.

The United Nations Secretary-General's special representative for human rights in Cambodia, Amb. Thomas Hammarberg, has reportedly said there is "not a shred of evidence" against Kim Sen and Meas Minear.[118] If prominent local human rights workers can be arrested and jailed, it sends a threatening message to ordinary citizens who might otherwise have continued their protests. The arrests also served to distract attention from the issue of who allowed the waste into Cambodia and to warn those who might seek to find out.

If there was initially an element of genuine misunderstanding by the authorities over the Licadho staff's actions, there is no more; the Sihanoukville court knows full well that the charges against them are unsubstantiated. By its reluctance to dismiss the case for lack of evidence, the court compounds the personal and professional damage that the two human rights workers have already suffered. Even if they do not face trial in Sihanoukville, it is unclear whether Kim Sen and Meas Minear (who have been transferred to Licadho's Phnom Penh office since their pre-trial release) would ever feel safe returning there to resume their human rights work.

Given the Sihanoukville court's actions to date, there are serious questions whether the Licadho staff or Khieu Piseth can be assured of receiving the fair trial to which they are entitled under international and Cambodian law.

King Norodom Sihanouk has indicated that he may grant amnesty for Kim Sen and Meas Minear if they are convicted,[119] and the Court of Appeal could also overturn any guilty verdict against them made by the Sihanoukville court. However, the prospect of an unfair verdict later being overruled is no substitute for a fair trial in the first place.

It is a sad commentary on the rule of law in Cambodia that while the government is prepared to see human rights workers sent to jail on inadequate evidence, it has consistently ignored calls by human rights organizations for prosecutions of grave crimes such as the deadly March 1997 grenade attack and scores of executions in the wake of Hun Sen's July 1997 coup. At the very same time as Kim Sen and Meas Minear were in Sihanoukville prison, two of the most senior leaders of the Khmer Rouge - which conducted the worst human rights violations in recent Cambodian history - defected to the government, and were feted in Phnom Penh and treated to a holiday in Sihanoukville.

The Sihanoukville court's treatment of Kim Sen and Meas Minear is by no means an isolated case, nor do such deficiencies occur only in overtly political court cases in Cambodia. At the root of the problem is the low education of prosecutors and judges (only twenty out of Cambodia's 135 judges have bachelors or masters degrees),[120] their low salaries, and the lack of accountability to ensure that they act independently and professionally. When it wants to, the government has taken action against judges, as in early 1998 when three Court of Appeal judges were temporarily suspended (in relation to the court's first-ever overturning of a lower court's ruling) on suspicion of taking bribes.[121]

However, Cambodia's Constitution states that the sole body to hire, or discipline, judges is the Supreme Council of Magistracy (SCM), chaired by King Norodom Sihanouk. The establishment of the SCM - along with that of the Constitutional Council, the country's highest legal body - was delayed for years by political wrangling over its membership. The SCM has met only twice, in 1997 and 1998. In the absence of a constitutionally-required law detailing the procedures for hiring and disciplining prosecutors and judges, the SCM - even if it could meet again - is acting in a void. There are no regulations for determining what qualifications and experience they need to be appointed or what improprieties they need to have committed to be removed. In 1998, some Ministry of Justice officials unsuccessfully tried to remove prosecutors and judges in two cases - both involving the release of murder or attempted murder suspects for inexplicable (but possibly financial) reasons.[122]

The International Covenant on Economic, Social and Cultural Rights, to which Cambodia is a party, requires treaty members to recognize the right of everyone to the enjoyment of the highest possible attainment of physical and mental health. It further specifically requires them to take action to guard the health of children; improve all aspects of environmental and industrial hygiene; and prevent and control epidemic, endemic and other diseases. While the blame should be shared, and by no means rests solely with the Cambodia government, this illicit shipment of hazardous waste clearly put the physical and mental health of Cambodians at risk.

The Sihanoukville case is an example of companies in industrialized countries using the lack of legislative and public advocacy in developing countries for their convenience. Toxic waste usually follows the path of least resistance, often to developing countries desperate for money and noted for corruption and lack of environmental awareness and laws. Precisely for those reasons, such shipments can be more dangerous than if they were dumped in industrialized countries. Since the Sihanoukville case, it has become clear that Formosa was not the first to look toward Cambodia to solve its waste disposal woes. According to public statements by the minister of environment, several foreign firms had previously tried to get approval to ship industrial waste to Cambodia. Also, a second dumpsite containing 650 tons of plastic, x-ray film and other industrial waste from Korea has since been found in Sihanoukville. Although apparently not toxic, the government is moving to order the removal of that waste.

With an estimated forty-four million tons of hazardous waste shipped internationally each year, according to United Nations estimates, Cambodia is likely to continue to be a target for the trade. Human Rights Watch recommends that Cambodia consider acceding to the 121-country Basel Convention (adopted in Basel, Switzerland in 1989), which governs the international movement of hazardous waste, and the associated Basel Ban Amendment, which aims to ban the trade from industrialized to developing countries. At the same time, urgent domestic laws and regulations are needed to close the many loopholes in Cambodia's environmental controls. The government's action in approving an explicit ban on toxic waste imports must also be backed by administrative and inspection procedures to ensure that the ban is enforced. By ratifying the international documents and passing and enforcing the domestic legislation, the Cambodian government has the opportunity to show the world, and, far more importantly, its own people, that it will not tolerate unnecessary health and environmental dangers to this troubled country.

Human Rights Watch

Asia Division

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[1] The date has also been reported as November 28 or 29, but November 30 is believed correct.

[2] Jade Fortune International Co. Ltd. shipping invoice dated November 13, 1998; undated Jade Fortune International packing list; Bill of Lading prepared by Long Shun Marine Company, dated November 20, 1998.

[3] Human Rights Watch interview with port worker, Sihanoukville, March 15, 1999.

[4] Sophie Biays and Peter Odermatt, "Health Needs of Risk Groups Exposed to Mercury-Containing Waste in Sihanoukville," Médecins Sans Frontières, January 17, 1999.

[5] Human Rights Watch interviews with Pich Sovann's family and fellow port workers, March 1999.

[6] Formosa's major shareholder, company Chairman Wang Yung-ching, and his family are worth an estimated $4.9 billion, according to Asiaweek (Bangkok), February 5, 1999 (citing The Australian's annual Asian families' wealth list, 1998).

[7] Nan Ya Plastics Corporation web page (www.npc.com.tw).

[8] Statements made by the Kaohsiung County Department of Environmental Protection and reported statements by Formosa Plastics Corporation President C.T. Lee.

[9] Rone Tempest, "Asia's Toxic Formula for Waste," Los Angeles Times, March 4, 1999.

[10] Ibid.

[11] Environmental Policy Monthly, Volume II, Issue 7, January 1999, published by the Environmental Protection Administration, Taiwan, and a briefing paper sent to Human Rights Watch by the EPA, March 1999.

[12] Ibid.

[13] Unofficial translation from the Chinese of "Contract for the Project of Eliminating [Waste]," prepared by the Ching Fu company; undated and unsigned, the contract may have been a draft.

[14] Environmental Policy Monthly, Volume II, Issue 7, January 1999.

[15] It has been widely reported that Formosa was fined Taiwan$150,000 (the equivalent of less than U.S.$5,000), which is the maximum fine for a single breach of Taiwanese environmental regulations. However, Formosa was in fact fined a total of Taiwan$1.56 million (around U.S.$48,000) for twelve breaches of the law, according to Ting Shan-long, director of the Kaohsiung County Department of Environmental Protection, in a March 31,1999 letter to Human Rights Watch.

[16] Green Formosa Front, letter to Human Rights Watch, March 25, 1999.

[17] Environmental Policy Monthly, Volume II, Issue 7.

[18] There are two known contracts between Jade Fortune and Muth Vuthy, one dated September 17, 1998 and the second dated December 3, 1998. The first contract refers to Muth Vuthy as being responsible for disposing of an unspecified amount of "non-hazardous industrial waste" at a Cambodian landfill. It makes Muth Vuthy responsible for securing customs and import clearance, and for meeting Cambodian environmental regulations. Muth Vuthy was to be paid a price of U.S.$20 a ton of waste by Jade Fortune. The second contract, prepared by Muth Vuthy, refers to the importation of 2,799 tons of "cement cake." It makes Muth Vuthy liable for import and customs procedures and paying taxes but does not refer to environmental regulations.

[19] Agreement between Formosa Plastics Corporation and the Cambodian Government Commission for Negotiation, signed in Phnom Penh, February 25, 1999.

[20] Khuy Sokhoeun and Ham Samnang, "Two Taiwanese Sought in Connection with Toxic Dumping," The Cambodia Daily (Phnom Penh), February 9, 1999.

[21] Khuy Sokhoeun, "RCAF Officer Who Sold Land Queried Over Toxic Waste Site," The Cambodia Daily, February 24, 1999.

[22] Cambodia does not have the technology or expertise to test materials for toxins.

[23] The reason for this increase is unexplained. See Khuy Sokhoeun and Ham Samnang, "3 Charged in Sihanoukville Waste Case," The Cambodia Daily, February 15, 1999.

[24] Memorandum to Sihanoukville Tax and Customs Department from National Director In Saroeun, December 4, 1998.

[25] Kimsan Chantara and Van Roeun, "Taiwan Not the First to Attempt to Dump Waste," The Cambodia Daily, December 23, 1998.

[26] "Waste Triggers Protests, Police Gunfire in Sihanoukville," The Cambodia Daily, December 21, 1998.

[27] Lor Chandara and Jeff Smith, "S'ville Official Denies Role in Shipment," The Cambodia Daily, December 23, 1998.

[28] See Jeff Smith and Van Roeun, "Council of Ministers ‘Knew of Waste Deal,'" The Cambodia Daily, January 14, 1999, and Royal Government of Cambodia Statement issued in response, January 15, 1999.

[29] Bettrang commune comprises three villages: Po Theung (closest to the dumpsite), Koki, and Chamnot Ream.

[30] Human Rights Watch interviews with local residents and officials, March 13-14, 1999.

[31] Formosa Plastics (in line with its stated belief that it had not considered the waste hazardous) has consistently denied that it put any warning signs on the bags. It is not known if the signs were put on by the Taiwanese or Cambodian subcontractors or another party.

[32] Human Rights Watch interviews with local residents and officials, March 13-14, 1999.

[33] Ibid.

[34] Mak Sithirith, Vann Piseth and Chheun Kun Cheat, "Preliminary Study of the Impacts of Toxic Waste on the People of Sihanoukville," NGO Forum on Cambodia, December 25-28, 1998.

[35] Human Rights Watch interview with village chief Sao Han, March 13, 1999.

[36] Dr. Lo Vannay, "Report on investigation of suspected cases affected by the toxic waste," Sihanoukville Provincial Health Department, December 19, 1998.

[37] December 1998 statements by Legal Aid of Cambodia, a nongovernment legal aid group which arranged assistance for the people.

[38]In Cambodia, each province or municipality has a governor and a first, second and third deputy governor. These heavily politicized positions are allocated between the two major parties, the Cambodian People's Party (CPP) and Funcinpec.

[39] Human Rights Watch interview with Hing Sarin, Sihanoukville, March 25, 1999.

[40] Prum Sokhan fell seriously sick two weeks later, an illness he attributes to the waste. Human Rights Watch interview with Prum Sokhan, March 16, 1999.

[41] Human Rights Watch interviews with Kim Sen and Meas Minear, Phnom Penh, March 5 and 8, 1999.

[42] Hing Sarin's recollection (in a March 25, 1999 interview with Human Rights Watch) was that he received one, not two, phone calls from Kim Sen. They talked about people being unhappy about the waste and that some people might be sick because of it. Hing Sarin confirms he asked Kim Sen to assure the people that the authorities would take action. However, the issue of a petition to the municipality was not discussed, according to Hing Sarin.

[43] The Sihanoukville governor, Thoam Bun Sron (Funcinpec), was reportedly out of town at the time. Regardless, his deputy Khim Bo (CPP), who had been governor of Sihanoukville under the former State of Cambodia regime, is universally considered by local residents and officials to hold the most power. In 1995, Gov. Thoam Bun Sron publicly complained of his lack of power, saying that he "can't even get a letter signed" without Khim Bo's approval. (See Matthew Grainger and Moeun Chhean Nariddh, "Governor hits out against CPP control," Phnom Penh Post, February 24-March 9, 1995.)

[44] Human Rights Watch interviews with local officials, Sihanoukville, March 1999.

[45] Human Rights Watch interviews with Kim Sen and Meas Minear, and separate interview with one of the market vendors present, March 1999.

[46] Cambodia's Constitution (1993) establishes citizens' rights to freedom of expression and association but also notes that the right to peaceful demonstration shall be exercised in accordance with the law. A 1991 law on demonstrations requires organizers to give to the local authorities three days' advance written notice of demonstrations. The authorities are empowered to refuse such a demonstration request if they consider that the protest is likely to "cause turmoil" or be detrimental to "public tranquility, order and security" (which are not specifically defined in the law).

[47] The police chief and other officials, such as Sihanoukville court prosecutor Mourn Mith, had already heard rumors of demonstrations. Mourn Mith told Human Rights Watch on March 15, 1999 that he had met some people who wanted to protest. He told them it was a good idea but that first they had to get official permission. Meanwhile, Prum Sokhan said (March 16) that he also heard of possible demonstrations. "Day by day, the people were waiting for the government to take action, but there was no appropriate action." He added that the central government in Phnom Penh, not the Sihanoukville authorities, was slow to agree to residents' demands that the waste be removed. "Since the action of the government was late, the people lost confidence in the local authorities - this was the cause of the demonstrations," Prum Sokhan said.

[48] Prum Sokhan told Human Rights Watch (March 16, 1999) that during their first phone call he asked Kim Sen to try to stop any demonstration because it would be unlawful. Prum Sokhan denied that he asked Kim Sen to telephone him back after he had checked with his boss, but Kim Sen did call back anyway. In the second call, it was Kim Sen who told Prum Sokhan that the demonstration had already started (not vice-versa), according to Prum Sokhan's version of events. "I told Kim Sen to try to stop the demonstrators. I said I would go there in a few minutes¼to help him," Prum Sokhan said. To Human Rights Watch questions, Prum Sokhan said that Kim Sen did not tell him where the demonstration was, and he did not ask [despite saying that he would go and meet him]. A few minutes later, according to Prum Sokhan's account, he learned from other police that the demonstrators were at Khim Bo's house, and he went there then. One of the market vendors who was present at Licadho when Kim Sen made the two phone calls was unable to throw any more light on their content for Human Rights Watch; he said that Kim Sen, in the confusion of dealing with many visitors, did not have time to tell the vendors what the policeman had said on the phone.

[49] Human Rights Watch interview with Prum Sokhan, March 16, 1999.

[50] According to two witnesses interviewed by Human Rights Watch, Kim Sen spoke to a only couple of people, and most of marchers walked straight past the Licadho office. Police chief Prum Sokhan said he did not see himself, but he heard from other police that the demonstration stopped at Licadho.

[51] Police chief Prum Sokhan saw Kim Sen at the protest. Asked by Human Rights Watch whether Kim Sen looked like he was ordering, or merely watching, the demonstrators, Prum Sokhan said on March 16 that he "could not tell."

[52] Human Rights Watch unofficial translation of the televised speeches.

[53] The next day, municipality offices, including the television studio where the statements were recorded, were put on alert for possible attacks by demonstrators, according to officials.

[54] The police selected the demonstration representatives from market vendors. They included Khieu Piseth, who said his wife relayed a request from a market policeman for him to attend.

[55] A similar request (which got a similar answer) was made to staff of ADHOC, another human rights group which monitored the demonstrations.

[56] Human Rights Watch interview with a witness, March 31, 1999.

[57] There is no evidence that Kamsab was involved in the waste importation, but the protesters were in the mood to attack anything with a connection to shipping.

[58] The manager confirmed this version of events in a March 25, 1999 Human Rights Watch interview. He said he watched the destruction of the hotel from nearby and never saw Kim Sen participating. Afterward, he heard some of the demonstrators shouting, "Let's go to [Khim] Bo's house." He met and talked to Kim Sen for a while and then gave him a ride into town in his car. He said Kim Sen was "probably" in the car with him at the time that the attack started on Khim Bo's house. Later in the day, they had lunch together.

[59] It is unclear how many protesters actually entered the house. Two days later, military policemen who were witnesses told Human Rights Watch that about fifteen people had entered and looted the house. One said that it was not demonstrators who did this but robbers who took advantage of the situation. Other military policemen said that 3human rights people² were at the demonstration but did not enter the house. Khim Bo reportedly told the court in a December 21 statement that U.S.$403,705 (which may include jewelry and other valuables) was taken from the house. Court officials later told Human Rights Watch that a total of U.S.$230,000 cash was stolen.

[60] The other human rights worker told Human Rights Watch that he approached the scene but Meas Minear, afraid that his motorcycle would be stolen or damaged in the fracas, stayed a safe distance away.

[61] This is believed to be the only time that the authorities fired shots during the two days of demonstrations. Throughout the protests, the authorities were very restrained, considerably more so than is often the case during demonstrations in Cambodia. The reasons for this are uncertain, but may include that the police and military police were never given direct orders to take hard action. Secondly, the authorities knew some of the demonstrators and may have even had sympathy for their cause. Witnesses say that the demonstrators verbally urged the police to support them. Also, some of the demonstrators, who included municipality employees or their relatives, knew, or were even friends with, some of the police.

[62] Human Rights Watch interview with a government official, March 1999.

[63] Sihanoukville court Prosecutor Mourn Mith and Judge Ke Sakhon alleged that Kim Sen, because he was arrested outside of Sihanoukville town, was trying to flee the police, who "followed" or "chased" him (to the coffee shop where he sat drinking with his colleagues); Human Rights Watch interviews with judge and prosecutor, Sihanoukville, March 15, 1999.

[64] Human Rights Watch interview with a witness to the arrest, March 25, 1999.

[65] Sihanoukville court Prosecutor Mourn Mith and Judge Ke Sakhon maintain that warrants were issued before the arrests. Mourn Mith said that he, in contact with the police by radio, did not give them the all clear to arrest Kim Sen until a warrant was issued. Ke Sakhon, meanwhile, suggested that because the police knew and respected Kim Sen, they did not want to "embarrass" the Licadho man by showing him a warrant; Human Rights Watch interviews with judge and prosecutor, March 15, 1999.

[66] Under Cambodian law - frequently abused - no one can be lawfully arrested without a warrant unless they are caught committing a crime in flagrante delicto (red-handed, or in the act).

[67] Judge Ke Sakhon and Prosecutor Mourn Mith were later quoted by journalists as saying that the Licadho pair, although charged with robbery and property damage, were really accused of inciting or leading an unlawful protest which led to robbery and damage (an implicit acknowledgment that the charges were dubious to begin with).

[68] The case against one of those arrested is that he chased another man who had stolen money from Khim Bo's house, and picked up U.S.$100 which was dropped or thrown by the alleged thief; Human Rights Watch interview with Judge Ke Sakhon, March 15, 1999.

[69] Undated statement to the court by arrested man.

[70] Sources who asked prison guards about the shackling attributed it to the prosecutor's order. The prosecutor, questioned by human rights workers, reportedly replied that shacking was necessary to prevent prisoners from escaping. The shackling, which was also imposed on several other prisoners (not related to the demonstrations), was reportedly stopped at the request of U.N. human rights monitors.

[71] Human Rights Watch interview with Judge Ke Sakhon, March 15, 1999. Initial reports on the arrest of minors suggested that three children aged fifteen or under had been detained, but lack of documentation often makes it difficult to establish ages in Cambodia. Cambodian human rights investigators found that only one child had been arrested.

[72] The official monthly salary of a deputy governor is around 100,000 Cambodian riels (around U.S.$27), according to a deputy governor from another province interviewed by Human Rights Watch.

[73] All the legal requirements for pre-trial release were met: Kim Sen and Meas Minear have families and homes in Sihanoukville, and Licadho's executive director vouched that they would not flee and would face trial if required.

[74] Khuy Sokhoeun, "Judge Grants Bail to Jailed Licadho Pair," The Cambodia Daily, January 21, 1999.

[75] Human Rights Watch interviews with two senior Ministry of Justice officials, March and April 1999. One of them noted that the first charge was difficult to prove, given that the arrest warrants on file at the court had allegedly been backdated. The second charge, that the court had insufficient evidence to arrest and charge Kim Sen and Meas Minear, was easier to prove, because the court still did not have any evidence by the time the Ministry of Justice officials made their investigation.

[76] Human Rights Watch interview with Ministry of Justice official, Phnom Penh, April 1999.

[77] Human Rights Watch interview with Prosecutor Mourn Mith, Sihanoukville, March 15, 1999.

[78] Under State of Cambodia administrative practices, provincial governors were responsible for appointing local prosecutors and judges, according to lawyers and justice officials interviewed by Human Rights Watch. Therefore, Khim Bo may have himself directly appointed the current Sihanoukville court officials, although this is not confirmed.

[79] Human Rights Watch was told that an angry governor Khim Bo, soon after his house was attacked, produced a video tape purporting to show Kim Sen or Meas Minear committing property damage. When the tape was showed to a group of officials, it was established that the culprit was in fact someone else. Human Rights Watch interview with government official, March 1999.

[80]The prosecutor originally claimed to have such a recording but later denied it. In a meeting with a senior Justice Ministry official, he suggested that the fact that the Licadho staff was seen with portable radios was evidence of their guilt. The justice official, in the presence of human rights workers, reminded the prosecutor that possession of radios was not an offense. Many international agencies and non-government groups use ICOM portable radios in Cambodia.

[81] Written statement of testimony to Sihanoukville court by Prum Sokhan, December 21, 1998.

[82] Report to the court by Em Bunsath, police commissioner of Sihanoukville, December 28, 1998. The report names more than ten people alleged to have planned the demonstrations and/or actively incited people to commit crimes during them. Only one person on the list, a teenage boy, is believed to have been arrested.

[83] See Jon Ogden and Heng Sok Chheng, "Newsmen in new intimidation claims," Phnom Penh Post, June 3-16, 1994; and Sou Sophornnara and Mang Channo, "Editors angered by Mouly's moves," Phnom Penh Post, July 29-August 11, 1994.

[84] Sathearanak Mati, Volume 2, Issue 45, July 19-20, 1998.

[85] Human Rights Watch review of The Mirror, a weekly English-language journal, published by the NGO Open Forum of Cambodia, which summarizes the content of the Khmer press, from February 1998 to March 1999.

[86] Under their power-sharing arrangement, Funcinpec and CPP each appoint one minister of interior.

[87] Ibid, Human Rights Watch review of The Mirror. Examples of Public Opinion's consistently pro-Sar Kheng coverage include: "His Excellency Sar Kheng gives money to help poor and elderly," June 6-7, 1998; "Sar Kheng: Government needs intellectuals as a resource to develop country", November 28-29, 1998; "His Excellency Sar Kheng is the Pillar of the Ministry of Interior" [which described Funcinpec's You Hockry as having a face "like a countryside dog," while Sar Kheng was "strict, patient and full of capacity"], December 5-6, 1998; "His Excellency Sar Kheng: In the second [government] term we have an obligation to move Cambodia into a state of law," December 12-13, 1998; "Mr Sar Kheng: Developing human resources is the task of the government," February 2-3, 1999; "Sar Kheng is Acting Prime Minister instead of Hun Sen" [which described Sar Kheng as "a political figure who solves problems peacefully"], February 6-7, 1999.

[88] Human Rights Watch interview with Lach Samroang, Phnom Penh, March 29, 1999.

[89] This is incorrect - it was Hing Sarin, not Khim Bo, whom Kim Sen telephoned.

[90] Human Rights Watch interview with Prosecutor Mourn Mith, Sihanoukville, March 15, 1999.

[91] Udom Katte Khmer, December 23, 1998.

[92] Khuy Sokhoeun and Ham Samnang, "Two Taiwanese Sought in Connection with Toxic Dumping," The Cambodia Daily, February 9, 1999.

[93] Khuy Sokhoeun and Ham Samnang, "3 Charged in Sihanoukville Waste Case," The Cambodia Daily, February 15, 1999.

[94] Im Sophea and Yuko Maeda, "Seven Charged in Toxic Waste Dumping Case," The Cambodia Daily, April 29, 1999.

[95] International and national human rights organizations have repeatedly called for this article to be abolished, as a vital action necessary to tackle the chronic problem of government officials' impunity.

[96] Human Rights Watch interview with senior government official, March 1999.

[97] See "Mission Report: Investigation into Suspected Mercury Contamination at Sihanoukville, Cambodia," National Institute for Minamata Disease (Japan), January 8, 1999.

[98] Agence France Presse and Associated Press reports from Taipei, December 18-19, 1998.

[99] See "Taiwan says inquiry will end waste uproar," China News, December 23, 1998 and "Toxic waste problem escalates: Cambodia appeals to Beijing for help with Taiwanese company, officials say," China News, December 24, 1998.

[100] For information on waste sample tests, see: Matcor Technology and Services (Singapore) report, December 24, 1998; National Institute for Minamata Disease (Japan), 3Mission Report² Investigation into Suspected Mercury Contamination at Sihanoukville, Cambodia² to the World Health Organization, January 8, 1999; Hong Kong Environmental Protection Department letter to Cambodian Ministry of Environment, January 11, 1999; Thailand Army Supreme Command Headquarters letter to Cambodian Ministry of Defense, January 15, 1999.

[101] The Taiwan Environmental Protection Administration's Environmental Policy Monthly, Volume II, Issue 7, January 1999, and an EPA briefing paper sent to Human Rights Watch, March 1999.

[102] Mineshi Sakamoto, et al., National Institute for Minamata Disease, "Mission Report: Investigation into Suspected Mercury Contamination at Sihanoukville, Cambodia" to the World Health Organization, January 8, 1999.

[103] See Sarah Stephens, "WHO tells NGO team to change toxic report," Phnom Penh Post, January 22-February 4, 1999.

[104] Sumiko Oshima, "Sufferers feel swept aside," Japan Times (Tokyo), December 1-10, 1997.

[105] See Médecins Sans Frontières' reports: Sophie Biays and Peter Odermatt, "Health Needs of Risk Groups Exposed to Mercury-Containing Waste in Sihanoukville," January 17, 1999; and Barbara Oberhauser and Sok Sarath, "Chemical Waste in Sihanoukville: Medical Follow-up of the Exposed Population," March 19, 1999.

[106] Michele Brandt, "Human Health Impacts and the Content of the Toxic Waste in Sihanoukville: the Concerns and Recommendations of Legal Aid of Cambodia," January 5, 1999.

[107] "Toxic Waste to be Removed in 60 Days," The Cambodia Daily, February 8, 1999.

[108] Chea Sotheacheath and Matthew Grainger, "Paradise Poisoned," The Phnom Penh Post, December 25, 1998-January 7, 1999.

[109] Human Rights Watch interview with Minister of Environment Mok Mareth, March 30, 1999.

[110] See Mak Sithirith, Vann Piseth, and Chheun Kun Cheat, "Preliminary Study of the Impacts of Toxic Waste on the People of Sihanoukville," NGO Forum on Cambodia, December 25-28, 1998.

[111] Human Rights Watch interviews with port workers and relatives, Sihanoukville, March 1999.

[112] See "Recommendations and objections to draft agreement," Legal Aid of Cambodia, February 23, 1999.

[113] Saing Soenthrith and Kay Johnson, "Toxic Waste Sent Off in Style," The Cambodia Daily, April 1, 1999.

[114] Ibid.

[115] March 30, 1999 letter to Safety-Kleen from U.S. EPA Office of Compliance, and March 31 public statement by Safety-Kleen.

[116] Angus Chuang, "Taiwan Taking Back Cambodia Mercury Waste, For Now," Reuters, April 1, 1999.

[117] For example, at least sixteen people were killed and dozens injured in a March 1997 grenade attack on a lawful, peaceful opposition party rally in Phnom Penh. Subsequently, several people were killed - some by security forces and some by demonstrators - during mass protests in Phnom Penh at the result of July 1998 national elections. In those demonstrations, a large number of protesters were detained, some were tortured, and at least one person reportedly arrested was later found shot dead.

[118] Nanaho Sawano, "UN Envoy Denounces S'ville Activists' Detention," The Cambodia Daily, January 16, 1999.

[119] Letter to Kailash Satyarthi, association president, Global March Against Child Labor, from King Norodom Sihanouk, January 11, 1999.

[120] See "KR Victims Deserve Justice," letter to the editor by Seng Syvutha of the Ministry of Justice, The Cambodia Daily, April 7, 1999.

[121] See Eric Pape and Bou Saroeun, "Historic court ruling: money or justice?," Phnom Penh Post, January 16-29, 1998. The then-minister of justice (acknowledging that he had no power to remove or sanction judges) temporarily suspended the three Court of Appeal judges on suspicion of taking bribes. The move followed the Court of Appeal's overturning a drug trafficking conviction against a Funcinpec military police chief, in what was a highly politicized case (Prime Minister Hun Sen having initially called for the policeman's arrest).

[122] Human Rights Watch interview with senior Ministry of Justice official, Phnom Penh, April 1999.