On June 20 the police arrested 14 Vietnamese girls who had been in custody at AFESIP,
an NGO which protects victims of sexual trafficking.
Most of the girls had been rescued in the first place in a police raid on three Svay
Park brothels. The arrested girls were then charged with illegal immigration. On
July 5, foreigner police in a raid on a guesthouse in Daun Penh district in Phnom
Penh took 21 girls 13 of whom were later charged with illegal immigration.
The charges of illegal immigration for the first batch of foreign girls have sparked
off immediate open criticisms while those for the second batch have aroused no less
concern, when there are claims that these girls are trafficking victims. The girls
have been arrested and charged under the Immigration Law enacted in 1994. However,
according to critics, their case, indeed their plight, could and should be considered
under the Human Trafficking Law enacted in 1996. Under this law the girls are trafficking
victims if they can prove their case, and cannot be charged with illegal entry into
The case of the foreign girls is actually one of conflict of law: which of the two
laws should have jurisdiction over them. The court should not hear their case until
this conflict has been resolved. Pending such a resolution the girls should not be
treated as suspects and detained under the Immigration Law.
The Cambodian legal system must pronounce whether the supremacy of international
law prevails over the supremacy of constitutional law, and subsequently whether the
Human Trafficking Law prevails over the Immigration Law or vice-versa. Cambodia's
status and international obligations under the Paris Peace Accords of 1991 should
determine a decision either way.
Cambodia has an international obligation "to ensure respect for and observance
of human rights and fundamental freedoms" and "to adhere to relevant international
human rights instruments." Such an obligation has been incorporated in its Constitution
of 1993 (Art. 31). It has now adhered to a number of such instruments but not yet
to the Convention for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others (1949).
Considering that Cambodia has an international obligation to respect human rights
and that this Convention itself is a human rights instrument listed in UNESCO's brochure
Human Rights: Major International Instruments, the adherence to this Convention and
to the supremacy of international law would form a solid argument for the jurisdiction
of the Human Trafficking Law over the case of these girls. It would be incumbent
upon them to prove that they are trafficking victims.
The lacunae created by the lack of Cambodia's adherence to that Convention should
not be a handicap though for the challenge against the jurisdiction of the Immigration
Law. The following can be cited in support:
- the general obligation of Cambodia vis-à-vis respect for human rights
under the Paris Peace Accords of 1991;
- Cambodia's obligation to adhere to all relevant instruments under the same Accords;
- Cambodia's recognition of and respect for all human rights under its own Constitution;
- the prohibition of sexual exploitation of children under the Convention of the
Right of the Child (art.39) which Cambodia has adhered to has jurisdiction over the
plight of the minors among the girls arrested;
- the Convention for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others (1949) being also a relevant international human rights
instrument, human trafficking is a violation of human rights;
- the constitutional prohibition of human trafficking and sexual exploitation of
women and children (art. 46 and 48);
- the principle of the supremacy of international law under the Paris Peace Accords
with regards to human rights and of the Convention of the Right of the Child;
- the constitutional obligation of the courts of law to "protect the rights
and freedoms of the citizens" (Art.128-New);
- the humanitarian principle prohibiting heavier sentences when there are two or
more laws with different sentences for the same crime;
- the continued policy of the Royal Government of Cambodia to combat human trafficking
and sexual exploitation of women and children;
- society's abhorrence of any punishment of victims of wrong rather than the wrong-doers.
The case for the supremacy of international law and for the prevalence and precedence
of the Human Trafficking Law over the Immigration Law in the case of these foreign
girls seems overwhelming. So does the case for the foreign girls to be treated first
as victims, not as law-breakers.
The charges under the Immigration Law against these proven traffic victims should
be dropped. These girls should be released immediately and given humanitarian assistance
and other support, and arrangements should be made to repatriate them to their homeland
if they are indeed aliens.
This is not the end of the story though. The police must endeavor to arrest the human
traffickers and owners of the brothels - and males having sex with minors - and bring
them to justice. And in future these wrongdoers should be their primary targets.