The lawsuit filed last month in the US against Prime Minister Hun Sen by opposition leader Sam Rainsy and several others, including a US national wounded in a 1997 grenade attack, faces steep legal obstacles and little hope of success, according to officials and legal experts.
The lawsuit was filed in a New York district court while Hun Sen was visiting the UN. According to the legal documents, the plaintiffs allege that the prime minister and members of his personal bodyguard unit were involved in the grenade attack on a peaceful opposition rally that left about 15 dead and 150 wounded.
Hearings on the case are likely to begin in November, according to a news release from the US-based World Organization for Human Rights, which is helping litigate the case on behalf of Sam Rainsy, Ron Abney, the former Cambodia director of the International Republican Institute who was injured in the attack, and others.
But one US law professor said that the lawsuit would have little chance of success unless Hun Sen were to leave office—and that even then it would be a long shot.
Cambodia’s Supreme Court on Sept 14 ruled that Sam Rainsy had no grounds to pursue such a case against the prime minister, while Hun Sen announced late last month that he had signed off on a defamation lawsuit seeking $25 million from Sam Rainsy in damages for his allegations regarding the attack.
“There is nothing to worry about,” government spokesman Khieu Kanharith said of the case in the US. “There is nothing to implicate [Hun Sen].”
Ka Savuth, Hun Sen’s lawyer, declined comment on the lawsuit until the case advanced further.
Diane Orentlicher, a law professor at American University who specializes in international criminal tribunals and issues surrounding accountability for human rights crimes, said the plaintiffs in the case “face an uphill climb” while Hun Sen is still prime minister.
“Hun Sen is still the leader of a foreign country…. As such, he enjoys broad immunity—but only while he holds office,” Orentlicher wrote in an e-mail.
Prosecuting rights cases abroad is extremely difficult, Orentlicher added.
“The plaintiffs would have to convince the judge that they had established all the elements of their causes of action in relation to events that happened a world away and, in relation to some allegations, decades ago,” she wrote.
Even in the most high-profile of such cases—the arrest of former Chilean leader Augusto Pinochet on charges of widespread human rights abuses related to his 1973 coup and subsequent dictatorship—Pinochet was no longer incumbent head of state when he was arrested in London in 1998 while seeking medical treatment, Orentlicher wrote.
Morton Sklar, executive director of the World Organization for Human Rights, said his group got involved in the 1997 grenade attack case because one of its aims is to make alleged human rights abusers accountable, particularly those who are or were heads of state.
But Sklar admitted that this case would be tough going.
“It is very doubtful that monetary damages will result,” he wrote in a recent e-mail. “But [cases like these] provide the victims with a very essential opportunity to confront their [alleged] abusers, and to obtain from a court a determination that these abuses actually occurred.” Sklar said the group had brought four similar lawsuits against China and former Chinese president Jiang Zemin for alleged human rights abuses against the Falun Gong spiritual group.
Jaykumar Menon, a legal counselor for the suit who claims to have worked on similar cases regarding the Bosnian genocide, alleged environmental abuses by the Shell Oil Company in Nigeria and complaints from student leaders involved in the Tiananmen Square protests in Beijing, said such action could have some concrete consequences.
Assets may be seized, visas to the US denied and additional suits lodged if the defendants travel abroad, Menon claimed.
Plaintiff Ron Abney reiterated that the US was guilty of a cover-up in its investigation of the grenade attack. “The grenade attack is an American story in addition to a tragic saga in Cambodian life,” he wrote by e-mail. “It is a cover-up by the [US Federal Bureau of Investigation] and officials from the 1997-99 State Department,” he wrote, adding that Tom Nicoletti, an FBI agent involved in investigation, was a tragic figure as he was punished for finding the truth.
Abney singled out Kenneth Quinn, who in 1997 was the US ambassador to Cambodia, and Stanley Roth, who was assistant secretary of state for East Asian and Pacific affairs at the State Department, for particular criticism.
“I hope all Americans involved will be made to testify in American court and face perjury charges and not just bad press,” Abney said.
“We’re just trying to bring the whole mess out in the open for the world to see,” he said, adding that the case would hopefully give Cambodia’s human rights situation international attention.
Sam Rainsy said he brought the case in the US because he would have no chance of receiving an objective court hearing here.
“Given the politically subservient court here, I have no alternative apart from filing lawsuits before courts in democratic countries such as France and the US,” he wrote in an e-mail.
But Sok Sam Oeun, head of the Cambodian Defenders Project, decried the ever-increasing number of lawsuits high-ranking officials are filing against one another.
“I want to see them work together,” he said. “I want them to see the future, not the past.”
(Additional reporting by Pin Sisovann)