This is one way to have an impartial judicial system and hopefully providing some kind of remedies to victims.
Richard R. Rogers is a lawyer and founding partner of Global Diligence LLP.
1. Among land grabbing cases that you have come across or handled, would you mind sharing your insights as to what common issues faced by victims particularly when planning to seek for justice within or outside legal proceedings pertaining to land grabbing issues?
The problem of victims in terms of seeking justice, nationally the courts just don’t function fairly in Cambodia because the same ruling elites who control the army and grabbed the land ultimately also control the court. The court, rather than being a service to citizens in a way to keep in check the power of the states, has become a tool of the ruling elites and a tool of repression and prosecution. So, there is no available legal remedy for victims in Cambodia; no functioning and fair legal remedy.
On the contrary, the court has been used to further the crimes. For example, trumped-up charges have been brought against land rights defenders and environmental defenders or residents to intimidate them. They’re threatened by the prosecution. The prosecution in the court are happy to buy the instruction of the ruling elites so that they intimidate the people and sometimes imprison them. If the army ultimately beats or shoots or commits offences against residents, the people will never be held responsible. The court is just not available to the victims as remedies. That is the main problem that the victims have. That’s why it is so important to bring the issues to the ICC because the Cambodian ruling elite don’t control the ICC. The ICC does have jurisdiction over Cambodia. This is one way to have an impartial judicial system and hopefully providing some kind of remedies to victims.
2. In some countries where land grabbing cases are rampant, laws concerning efforts to development are very frequently used to provide a ‘legalized’ leeway to seize lands, further disadvantaging victims’ already-limited position in legal proceedings, and even criminalizing and prosecuting victims themselves (e.g. in Cambodia – the case in which you are directly involved). Given these issues, do you think that there are some alternative legal frameworks or proceedings at national level that could help to protect and ensure victims’ rights in accessing justice?
Certainly not the court. They can apply to regional human rights bodies but those do not really have any teeth. They can have international human rights (HR) bodies like HR Council in its periodic review but they do not really have any teeth either; all that is a way for Cambodia to be shamed diplomatically but it is so used to this and it usually carries on with Business-As-Usual. I cannot think of single examples where the victims have gained restitution of property or fair compensation through legal means.
3. Due to increased distrusts against legal systems, victims often choose to go into an informal judicial process (i.e. mediation), is there much effort made as an alternative mechanism to ensure victims’ rights to remedies (e.g. in Cambodia)?
The good thing about mediation is that the victims are not to face threats. Because outside court system, it is just between the businesses and victims. [However] it really depends on the companies’ willingness […] and it is a matter of the company trying to make sure things don’t get out of hand probably for their own reputation. [Yet] only countries that have big consumer movement and that have legal systems also where they require companies to meet HR standards…So, it needs a company somewhere like [from] France that has quite strict rules on how businesses act ethically and has active civil societies who monitor the actions of businesses before those who think about mediation. Because eventually legal systems can touch [them]…[and] require the companies to do a HR impact assessment et cetera. So from time to time that can work but only, and I think realistically, if the company has something to gain from it – something to gain often always means protecting its reputation at home – it can work… So there are isolated examples of negotiation and mediation but they tend to be where companies involved has something to lose either in reputation or in avoiding litigation in home country […]
4. Given the ICC’s recent move to provide a ‘particular consideration’ over crimes committed as a result of/in “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land” in their policy paper, how do you think that this development would contribute to how land grabbing as forced transfer would be perceived by legal systems in countries, particularly in relation to victims’ rights?
I don’t think that [the ICC’s policy paper] will make any differences in itself. What will make a difference is when the ICC announces that it is actively investigating a case of mass land grabbing because the forced eviction of people amounts to crimes against humanity. […] Once they do that, then that will send a message to not only the governments around the world but also businesses around the world that if they become involved in massive land grabbing; if it reaches a certain scale; and if it includes mass forced eviction of populations, then they need to be careful because they may amount to crimes against humanity. That will be a real game changer in terms of how businesses look at their risks and how governments determine how much they can get away with.
It is one thing being accused of HR abuses or being accused of complicity of HR abuses […] but it is another thing being accused of crimes against humanity. That is really a major threat to businesses’ reputation and I think that businesses, certainly Western business, well then have to do much more rigorous HR impacts assessments before they invest in countries that have land grabbing problems. And individual governments would hopefully have a second look at their policies in countries and see what’s going on […] [and] think “hold on, are we going to get caught under this umbrella of crimes against humanity; do we need to do something?”. I don’t think that the policy paper itself is enough. It needs a real threat of litigation. Of course the ICC taking action on the Cambodia case would empower civil society, environmental defenders, land rights defenders. It would empower them to make a greater fuss that ‘’look what you’re doing is no longer just a HR piece but now it is an international crime”.
[So] it is going to have an impact around the world in different places that are facing the similar situation. Certainly, these kleptocratic governments – the government whose only aim is to steal as many resources and unjustly to enrich themselves, […] they have been getting away with it because they don’t commit massacres; because they don’t have to. They just commit lots of HR violations everyday: stealing lands, stealing resources, polluting rivers, chopping down rainforest. It’s bad but it’s not bad enough to be at front page news and it’s not bad enough for them to be threatened with indictment from the ICC. That will change once the ICC says that “look we agree that these facts patterns, the massive land grabbing with massive forced populations could amount to crimes against humanity”. That message will reverberate across the world to the other governments and business. It doesn’t mean that everything can be cured. Obviously, this is just part of a much bigger fight to protect the environment and the rights of poor people against reversed governments and military. But it will be an important step to make them think twice and it will empower civil society and HR lawyers.