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Logo of Phnom Penh Post newspaper Phnom Penh Post - Comment: KR trials: UN's story doesn't add up

Comment: KR trials: UN's story doesn't add up

Acommonly heard argu-ment from defenders of the UN withdrawal from the KR trials

- mainly ultra-reactionary US politicians and gullible NGOs - is that the Cambodian

government broke an "agreement" or "memorandum of understanding"

reached with the UN in July 2000.

For example, ADHOC's report "Human Rights Situation in Cambodia 2001" states,

"... there are still a number of discrepancies between the Memorandum of Understanding

and the Khmer Rouge Tribunal Law ... if the government does not incorporate the terms

of the MoU into the Khmer Rouge Tribunal Law, why did the government agree with the

United Nations upon the Memorandum in the first place[?]"

The short answer to ADHOC's question is: "It didn't." No MoU has been agreed.

After several rounds of negotiations, the last in July 2000, there was agreement

on a number of questions, and some remaining disagreements. The agreements were not

written into any document formally accepted by both sides, but most of them were

eventually incorporated into the law establishing the Extraordinary Chambers.

Shortly after the departure of the UN delegation, quotations began circulating from

a document usually described as an "agreement" between the Cambodian government

and the UN. Calling the document "changes agreed upon by United Nations Under

Secretary-General Hans Corell and the Minister of the Council of Ministers Sok An

on July 7, 2000", the Phnom Penh Post published the entire document on the internet.

In fact, the document was really the UN's proposal for an MoU, not an agreed text.

It was presented to the Cambodian government for its consideration as the UN delegation

was leaving Phnom Penh. The government's task force for the KR trial pointed out

in a letter published in the November 24-December 7, 2000, Phnom Penh Post that an

agreement could not have been signed on July 7, since the talks had concluded on

July 6, and that none of the documents circulating bore the signature of either party:

all were drafts, working documents.

This was acknowledged by the UN in New York at the conclusion of the talks in July.

A "Statement Attributable to the Spokesman for the Secretary-General" noted:

"Mr Corell provided his Cambodian counterpart, Mr Sok An ... with a draft Memorandum

of Understanding ..." (My emphasis.)

But when political axes are sharpened, facts that raise their heads risk decapitation.

Moreover, the contempt for facts displayed by ADHOC and other critics has been encouraged

by an obfuscation carried out by Corell's UN Office of Legal Affairs (OLA).

Corell and the OLA have regularly referred to "the MoU to be signed between"

Cambodia and the UN. This is accurate in the sense that an MoU would need to be signed

before the UN participated in the trials. But lawyers choose their words carefully,

and in this case they chose for ambiguity: The phrase can also be misinterpreted

to suggest that an MoU has already been agreed and is merely awaiting the formality

of signing.

Interestingly, Corell expressed both of these two quite different ideas in his February

8, 2002, press conference. In his prepared statement (essentially the content of

his letter to the Cambodian government), he said: "During that period [July

2000-August 2001], the United Nations provided numerous suggestions aimed at assisting

the Government in establishing a credible process and worked closely with Minister

Sok An in drawing up an agreement on the establishment and operation of the Chambers."

(Emphasis added.)

In fact, there is little evidence of the OLA doing anything more than sending an

occasional rude letter during that time. But the words I have italicized are an admission

by Corell that the MoU, far from being finished in July 2000, still needed "drawing


However, in the same statement, Corell also said just the opposite. He described

the draft memorandum, which he had presented to the Cambodian government as he was

leaving Phnom Penh, as "the text of the agreement to be signed", which

he claimed had been "subjected ... to a detailed scrutiny" by both parties

before his departure.

Some may find it hard to believe that the UN Deputy Secretary-General for Legal Affairs

would deliberately misrepresent the status of the negotiations. They should read

the transcript of his February 8 press conference. Asked by a reporter to "be

more specific about what particular standards and procedures" he objected to

in the KR trial law, Corell first spouted several sentences of meaningless waffle.

Finally, however, he ventured: "But there are several issues, which we had raised

to the Government. One of them, for example, is that the accused would not be allowed

to appoint counsel of their own choosing."

If Corell had read Sok An's January 22 letter to him, as he said he had, he would

have known that it stated quite explicitly that Cambodian law already guaranteed

defendants this right, and that the Cambodian government was willing to have it specified

in the MoU as well, if that was felt necessary. Corell has not issued a correction

of his untruth, and the "government refusal to allow defendants to choose their

counsel" is already becoming a media-NGO article of faith along with "the

MoU agreed in July 2000".

The UN can also be accused of misrepresenting the disagreement about the status of

any eventual MoU. At the February 8 press conference, Kofi Annan's spokesman, Fred

Eckhard, said that the UN's letter withdrawing from the negotiations gave as one

of its two reasons: "Second, the Government rejected the United Nations proposal

that the assistance that the United Nations would provide will be governed by the

agreement between the United Nations and Cambodia. Cambodia insists that only its

own rules would govern such assistance."

This was a double untruth. First, the Cambodian government has said repeatedly that

the KR trial law would govern the trials, and the MoU would govern UN assistance

and participation. Secondly, Eckhard's summary misrepresented the UN letter, as Corell

described it. The disagreement was not over what document would govern UN assistance,

but what document would govern the conduct of the trials.

Cambodia, Corell complained, wanted to reduce the MoU "to the status of a technical,

administrative document subordinate to the Law". That would "deprive it

of its substantive role of ensuring that international standards of justice ... would

be maintained" in the trials.

Leaving out loaded words like "subordinate", the government position, presented

by Sok An at his February 12 press conference, is that the law and the MoU deal with

different areas: the trial procedures and UN participation, respectively. This is

not a downgrading of UN concerns, because most of those were already incorporated

in the KR trial law. But it does mean that the MoU would mostly deal with technical

matters of co-operation.

This was not previously regarded as a problem by the OLA - or at least not by Kofi

Annan. His spokesman's statement in July 2000, at the conclusion of the negotiations

in Phnom Penh, said:

"Because the outstanding substantive issues were resolved by the Secretary-General

and Cambodian Prime Minister Samdech Hun Sen [in a meeting in February 2000], the

discussions focused on technical issues involved in forming the tribunal ..."

(Emphasis added.)

The UN wants two bites at the cherry. First it negotiated on the content of the KR

trial law, which resulted in the "supermajority" arrangement and other

compromises. Then it demanded to be allowed to overrule the law with an "agreement"

to which Cambodians never consented and which the Secretary-General previously described

as mainly technical. Echoed by some NGOs, the OLA says the government's refusal to

accept this double-dealing means the government is breaking an agreement.

These are the people, it is necessary to recall, who claim to represent international

standards of justice.

Allen Myers is an Australian currently resident in Cambodia who has been involved

with this issue since the late 1980s, when he joined the international campaign to

have the KR removed from Cambodia's UN seat.



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