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Trafficking: courts weak link in chain of justice

Trafficking: courts weak link in chain of justice

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The government's anti-trafficking department is starting to

catch the bad guys but all too often they slip thruogh the legal net, NGOs say. In

part 3 of his series on human trafficking, Liam Cochrane writes about policing and

the law in Cambodia.

Like so many girls in so many brothels around Cambodia, the 12-year old found with

a 54-year old Japanese man during a police raid last November was Vietnamese and

had been lured into the sex industry.

The case seemed straightforward to Afesip, the NGO which became the girl's temporary

guardian after the rescue.

General Un Sokunthea, head of the government's Anti-Human Trafficking and Juvenile Protection Department is a no-nonsense woman charged with stopping the human trafficking industry.

Kanae Masata was caught alone with the girl in the notorious brothel district of

Svay Pak, also known as K11 because of its distance from Phnom Penh, and police confiscated

a camera containing footage of him having sex with five different girls who appear

well below 15, the legal age of consent.

While Masata was charged with the child-sex crime of debauchery and was not accused

of trafficking, paying customers are the ultimate reason sex trafficking takes place.

Months later Afesip's legal advisor, Aarti Kapoor, would tell journalists that despite

the overwhelming evidence, the case would again illustrate the pliability of the

Cambodian legal system and the lack of justice for victims.

But a successful arrest is in itself cause for celebration among police and international

organizations working to improve Cambodia's reputation as a source, transit and sending

country for human trafficking.

From May 2002 to the start of this year, the Ministry of Interior (MoI) Anti-Human

Trafficking and Juvenile Protection Department has made 70 trafficking arrests, leading

to 22 convictions so far, says Director-General Un Sokunthea.

Most of those arrests were of relatively small-time players, Sokunthea admits, but

a rare and encouraging exception was the sacking and imprisonment of a police major

(working outside the department) a year ago for his role playing bong thom or "big

brother" to traffickers and brothel owners in Svay Pak.

Human trafficking is made possible by corrupt officials who allow borders to be crossed

and paperwork fudged, and human rights groups claim this corruption goes disturbingly

high up the chain of command.

But not everyone is on the take, and Sokunthea says that while it's difficult to

be 100 per cent free of corruption, she is committed to keeping her team clean.

"Until now I'm very proud to never have been accused by an NGO or from the public,

because since the establishment of this department there has been no corruption,

said Sokunthea through a translator on April 22.

The department is supported by Unicef, with additional help from World Vision and

the International Organization for Migration, and receives funding from the government

of the Netherlands.

Christian Guth is a law enforcement advisor to the 150-strong department and says

it is crucial that Cambodia devotes specialized attention to the growing problems

of sexual assault and trafficking.

"It's important because these people have no other tasks than this," says

Guth.

"Interviewing an offender who has stolen a motorbike ... is not the same as

interviewing a child victim who has been raped or sexually exploited. There's some

special training and special knowledge [needed]."

While the Phnom Penh department has national jurisdiction, many cases of trafficking

and child sex offenses occur outside the capital, so the MoI set up bureaus in six

key provinces: Kandal, Kampong Cham, Sihanoukville, Siem Reap, Battambang and Banteay

Meanchey.

With the majority of the victims of trafficking and sexual assault being women and

girls, the department and its bureaus have tried to strike some kind of gender balance

and Guth says eight at the 15-strong bureau in Banteay Meanchey are women. Across

the bureaus the average is closer to 20 per cent, he says.

"During the recent past the women haven't had the opportunity ... so if we want

women to play a main role in the police force it will take time," said General

Sokunthea, who also heads up the MoI's Gender Action Group.

In a December 2003 speech, Minister of Interior Sar Kheng said sexual expolitation

and trafficking was a priority for the government and hailed the formation of the

department as "a good example of the concrete action" taken by his ministry

to protect women and children.

He also called on provincial governors to give clear instructions to their staff

that victims deserve support and the opportunity to file a complaint against offenders.

Sokunthea says the nationalities of those arrested roughly reflects those involved

in Cambodia's trafficking industry, with approximately 60 percent Vietnamese, 30

percent Khmer and a minority of other nationalities.

Statistical breakdowns such as this shape the way police fight the rising tide of

trafficking and the department is in the process of implementing a database system

to record incidents of sexual assault and trafficking as well as help to manage the

cases the team is working on.

While Christian Guth describes the database primarily as a "specialized criminal

filing system" he says it does have the potential to lead to a blacklist stopping

known offenders from entering Cambodia.

But even with more information and a sizable force dedicated to the issue of trafficking,

police must battle a cumbersome legal system that is prone to corruption and allows

many offenders to walk free, say NGO workers.

Human trafficking is currently covered by a brief 1996 law that focuses heavily on

kidnapping with imprecise definitions that police, lawyers and NGOs alike say leave

loopholes for offenders.

But a new draft law is in the pipeline, re-written by Japanese lawyer Yoichi Yamada.

After finishing a stint with an NGO, Yamada made a personal proposal to the Ministry

of Justice to patch the gaping hole in Cambodia's law and was later backed by Unicef.

By August 2002 his first version was ready for feedback and with input from stakeholders

it was expanded to a 52-article draft submitted for official consideration a year

ago.

But like so much of Cambodia's legal reform, it has been held up by the long-running

political deadlock. However, Yamada says this delay could actually prove helpful.

"What I wanted by drafting the law was to provide a draft to trigger discussion

and deliberation on the legislation by Cambodian people themselves," said Yamada

in an April 20 email from Japan.

"I would be really happy to see my draft discussed or even substantially modified

or replaced with a better alternative."

Some anti-trafficking lawyers say the draft law still has "too many gaps"

and falls short of UN protocols, while others would like to see more defenses for

victims of trafficking against charges such as prostitution and illegal immigration.

But it is clear the draft is a vast improvement on existing laws, giving clearer

definitions of crimes, adding articles covering pornography and nullifying the illegal

"contracts" and "debts" that are so often used to keep women

enslaved.

Sok Sam Oeun, executive director of the Cambodian Defenders Project, oversees a three-person

trafficking division that sees about 30 cases a year.

Oeun says that even under the 1996 law, his organization has a "very high"

success rate in cases when the victim cooperates with lawyers. But many girls choose

not to go to court; their reasons are numerous and complex.

One 18-year old interviewed at an Afesip shelter in Phnom Penh said she spent two

years in brothels after her aunt sold her at 16.

"People who run brothels should be arrested," she said. "But not my

aunt."

She only escaped after her aunt became angry with the brothel owner for not paying

enough money and so the aunt told the police, who raided the brothel.

Family loyalty and a sense of just wanting to put their experience in the past was

common among the girls interviewed by the Post. They also expressed a feeling that

the court system would not help them.

"I'm angry at those who run brothels and I want them imprisoned but in Cambodia

if you have money you can escape," said the 18-year old, who asked not to be

named.

Sok Sam Oeun says the fear of consequences from testifying against powerful criminals

is another reason victims are reluctant to take their complaints to court.

But Oeun points out that lawyers are only the final step on the path to a trafficking

conviction.

First the police must make an arrest, working with the 1992 UNTAC code on criminal

procedure, described as a bad copy of the French system by several sources working

in anti-trafficking.

Just one quirk of the criminal procedure is that in cases where the suspect is not

"flagrante delicto" or caught in the act, police must obtain a search warrant

and conduct their search between 6am and 6pm, not always practical when investigating

an industry that doesn't always keep regular business hours.

Once a suspect has been detained, the investigating judge has a pre-trial detention

period of up to six months to gather evidence and establish the facts of the case.

Much to the frustration of NGOs such as Afesip, a thorough investigation does not

always happen and the long pre-trial detention allows plenty of time for an out of

court settlement or judicial corruption to take place.

Afeseip says that such was the case with the Japanese man, Kanae Masata.

In early 2004, Afesip was told by one of their trusted sources that Masata's lawyer

laid $10,000 cash on the table of a senior policeman involved with the case, who

secretly filmed the bribe attempt.

The lawyer was arrested but later released after allegedly threatening to use his

influence with the Cambodia Bar Association to damage the policeman's career, said

Afesip.

The Post could not independently confirm the allegation and the police officer involved

would not provide footage of the alleged bribe, but Pierre Legros, Afesip's regional

co-ordinator, says there is no doubt that bribes of between $10,000 and $25,000 are

regularly made to get charges dropped.

Masata hired a new lawyer, who persuaded the Chief Prosecutor and Court President

Judge in Phnom Penh to release the suspect on March 23 for health reasons, with a

$5,000 bail.

The court order said that Masata didn't know the girl's age and criticized the 12-year-old

because "while having sex she did not tell the man how old she was".

A spokesperson for the Japanese Embassy said on May 4 that Masata was still in Phnom

Penh awaiting trial and would not leave the country as his passport has been confiscated.

However, a trial date has not been set, exasperating Pierre Legros.

"If we can't arrest [and send to trial] a simple Japanese guy, how can we arrest

the Chinese mafia that traffics a thousand girls to Malaysia?" asked Legros.

Unfortunately, the injustice of this case doesn't stop there.

Recently, Afesip received a phone call from the 12-year old victim's mother saying

her daughter had disappeared again, thought to have been trafficked to a distant

provincial brothel.

So while the legal system grinds slowly towards reform and the police try to improve

their record of apprehending traffickers, the result of this cruel trade goes on:

one more young girl, a child, joins the thousands of others forced, lured or tricked

into the sex industry.

(Translation by Sam Rith)

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